Lawrence James Montanaro v. State , A10–1633.
| Decision Date | 07 September 2011 |
| Docket Number | No. A10–1633.,A10–1633. |
| Citation | 802 N.W.2d 726 |
| Parties | Lawrence James MONTANARO, petitioner, Appellant,v.STATE of Minnesota, Respondent. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
The postconviction court did not abuse its discretion when it denied appellant's petition for postconviction relief when the alleged errors in the jury instructions and the prosecutor's alleged misconduct during his closing argument did not affect appellant's substantial rights.
David W. Merchant, Chief Appellate Public Defender, Michael F. Cromett, Assistant State Public Defender, St. Paul, MN, for appellant.Lori Swanson, Attorney General, St. Paul, MN; and Mark S. Rubin, St. Louis County Attorney, James T. Nephew, Assistant County Attorney, Duluth, MN, for respondent.
In this first-degree murder case, appellant Lawrence James Montanaro appeals from an order denying his petition for postconviction relief. The petition, which Montanaro filed after the statute of limitations for filing a postconviction petition expired, alleged that Montanaro was entitled to a new trial because the trial court's self-defense jury instruction and the prosecutor's closing argument contained plain errors that affected his substantial rights. Montanaro's appeal presents two issues. First, whether Montanaro established that his petition fell within an exception to the postconviction statute of limitations. Second, whether the postconviction court abused its discretion when it denied Montanaro's request for a new trial based on the court's conclusion that the alleged errors did not satisfy the third prong of the plain error test because the errors did not affect Montanaro's substantial rights. Because we conclude that the alleged errors did not affect Montanaro's substantial rights, we affirm the postconviction court's denial of Montanaro's petition, without deciding whether Montanaro established an exception to the statute of limitations for filing a postconviction petition.
Montanaro was indicted for 15 felony counts, including first-degree murder for the death of a peace officer 1 in violation of Minn.Stat. § 609.185(4) (1992).2 Montanaro pleaded not guilty and demanded a jury trial. At trial, the following evidence was presented. The record indicates Montanaro was 5 feet 7 inches tall and weighed 145 pounds; he worked as a machinist and would spend six or seven months in a city working until his “drinking started catching up” with him, at which point he would leave for a different city. Between February 28, 1990, and April 9, 1990, Montanaro lived at the Seaway Hotel in Duluth. Montanaro spent his days working and his nights and weekends drinking “[t]ill [he] couldn't drink no more.” He would frequently go to the Midway Bar, located a half block from the Seaway Hotel, and then end up back in his room at the hotel sometimes not remembering how he got there. Montanaro often carried a .22 caliber pistol that he bought after an altercation he had with a “rather huge man” in Pennsylvania. He also had a .30 caliber carbine with a sawed-off stock, loaded with a full clip plus a round in the chamber, which he kept in his travel bag in the closet of his hotel room.
On the evening of April 9, 1990, Montanaro ended up at the Midway Bar where he became involved in an altercation with Mark Chumich; the record indicates Chumich was 6 feet 1 inch tall and weighed 300 pounds. Witnesses at the bar that night testified that Chumich was heckling and needling people, and that he typically “likes to kind of get things going” but then stops them by saying he was only “kiddin' around.” Several witnesses testified that Montanaro and Chumich got into a “scuffle” with “loud voices” near the back of the bar and one witness overheard Montanaro tell Chumich “your size does not bother me” and “I will get you.” The bartender later saw Montanaro follow Chumich out the back door.
Outside the bar, Montanaro called Chumich a “nasty” name. When Chumich turned around and started walking toward Montanaro, Montanaro backed away saying, “I'm gonna' get you, or ... kill you.” Although there was enough space between Chumich and Montanaro for Montanaro to have escaped, Montanaro chose to pull out his pistol and shoot Chumich in the chest from a distance of about 10 to 12 feet. Montanaro then fled as Chumich went back to the bar for help. When the police officers arrived at the Midway Bar, they obtained a description of Montanaro but not his name.
Based on that description, the officers canvassed the neighborhood around the bar. The officers learned that a person matching the description lived at the Seaway Hotel in room 209/211 and that the person's last name was Montanaro. The officers went to Montanaro's hotel room and knocked loudly on the door with flashlights. When the officers received no response, an officer used a hotel phone to call Montanaro's room, but there was no answer.
An officer then called an assistant county attorney and advised him of the situation. After receiving permission from the assistant county attorney to enter Montanaro's room without a warrant, two uniformed officers and two plain-clothed officers proceeded to Montanaro's room, where they joined two uniformed officers who had been stationed outside Montanaro's room. Four of the officers took up positions on either side of the doorframe to Montanaro's room. The other two officers remained by the stairwell in the hallway, several feet from the doorway. All six officers had their service revolvers drawn.
At some point, one of the officers knocked on the door and yelled that it was the police and for Montanaro to come out of the room. After receiving no response, an officer used a key obtained from the front desk clerk to unlock the door and another officer turned the door handle and pushed open the door until it was stopped by the door's security chain. One of the officers then yelled that Montanaro was in the room and another yelled to kick in the door. As the officer kicked in the door, Montanaro repeatedly fired the .30 caliber carbine. The bullets passed through the door and wall, killing one officer and seriously injuring another.3
The officer closest to the door returned fire, emptying his revolver into the room. The door, which was self-closing, closed and, during a lull in the firing from within the room, the officers pushed the door open again. The firing from within the room resumed as the door opened. One of the officers was able to enter the room and fire two shots at Montanaro, who was firing through an opening in the wall between the kitchen and the bedroom. Montanaro threw his carbine on the bed and yelled something to the effect of “I give up, I surrender,” at which point he was taken into custody. When the officers frisked Montanaro, they discovered the .22 pistol in his shirt pocket and four fully-loaded clips of .30 caliber ammunition in his outer jacket pocket. Montanaro asked the officers if he had hit any of them and made statements to the effect that he “didn't mean to shoot any of you guys.” Montanaro was then taken by ambulance to the hospital for treatment of bullet wounds to his cheek and to his ankle.
Montanaro testified to the following at trial. On the night of April 9, 1990, Montanaro woke up from a “blackout” to the sound of loud noises outside his door. According to Montanaro, he did not hear the officers announce themselves or knock on the door, but rather thought it was Chumich and his friends at the door coming to kill him. He then got out of bed, went to his closet, unzipped his travel bag, and grabbed his carbine and extra clips. Just as he was turning to face the door, the door was kicked open, at which point he yelled that he did not want to hurt anybody and fired a few shots “out in front of [the] door.” He claimed that he would stop shooting when the door closed, but that it kept coming open, prompting him to resume firing until he had fired all 15 bullets from the gun's clip. The final time the door opened, he saw two silhouettes enter the room, which he claimed he purposefully “fired over” to miss hitting them. Montanaro surrendered when he realized the silhouettes were police officers because he heard the officers' CB radios, saw blue uniforms, and recognized that one of the silhouettes was “in an FBI stance.”
On April 18, 1991, the jury found Montanaro guilty as charged. After convicting Montanaro of first-degree murder of a police officer, the district court sentenced Montanaro to a mandatory life term.4 Montanaro did not file a direct appeal.
In 2003, Montanaro was diagnosed with dementia from Alzheimer's disease. The statute of limitations for filing a petition for postconviction relief expired on August 1, 2007. Act of June 2, 2005, ch. 136, art. 14, § 13, 2005 Minn. Laws 901, 1098. On August 18, 2009, Montanaro informed the State Public Defender's Office that he wanted to challenge his convictions. The State Public Defender's Office subsequently filed a petition for postconviction relief on behalf of Montanaro, claiming that Montanaro was entitled to a new trial because the district court committed plain error when it instructed the jury that he had a duty to retreat and because the prosecutor committed misconduct during closing argument.5 In response to Montanaro's petition, the State argued both that Montanaro's submissions failed to establish any of the statutory exceptions to the postconviction statute of limitations and that the postconviction court should reach the merits of the petition and conclude that the district court did not err and the prosecutor did not commit misconduct.
Without analysis, the postconviction court determined that Montanaro satisfied the interests-of-justice exception to the statute of limitations set forth in Minn.Stat. § 590.01, subd. 4(b)(5) (2010). After considering the merits of Montanaro's substantive claims, the postconviction court denied the petition in all respects. The...
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