State v. Buchanan, s. C2-87-2498

• Decision Date: 23 November 1988
• Docket Number: C7-88-62,Nos. C2-87-2498,s. C2-87-2498
• Citation: 431 N.W.2d 542
• Parties: STATE of Minnesota, Respondent, v. Lionel S. BUCHANAN, Appellant.
• Court: Minnesota Supreme Court

Page 542

431 N.W.2d 542

STATE of Minnesota, Respondent, v. Lionel S. BUCHANAN, Appellant.

Nos. C2-87-2498, C7-88-62.

Supreme Court of Minnesota.

Nov. 23, 1988.

Syllabus by the Court

1. There was sufficient evidence for a jury to reasonably find the defendant guilty of intentional and premeditated murder under Minn.Stat. Sec. 609.185(1) (1986).

2. The trial court's evidentiary rulings were not an abuse of discretion and did not result in prejudice to the defendant.

3. The performance of defendant's trial counsel was not deficient, nor did it result in prejudice to the defendant.

Susan K. Maki, Asst. State Public Defender, Minneapolis, for appellant.

Vernon E. Bergstrom, Atty. General's Office, St. Paul, and Beverly J. Wolfe, Asst. Co. Atty., Minneapolis, for respondent.

Heard, considered and decided by the court en banc.

POPOVICH, Justice.

Defendant was convicted of first-degree murder in a jury trial in Hennepin County District Court. Defendant appeals to this court, claiming (1) evidence adduced at trial was insufficient as a matter of law to sustain his conviction; (2) evidence of defendant's alcohol consumption established his incapacity to premeditate or form the requisite intent; (3) the evidence established as a matter of law the homicide was committed in self-defense or in the heat of passion; (4) admission of the videotaped interview defendant gave police was an abuse of discretion; (5) the trial court's refusal to admit certain evidence offered by the defendant unconstitutionally denied him the opportunity to present a defense; and (6) defendant's right to effective assistance of counsel was denied because the public defender failed to zealously defend him. We affirm.

I.

On the evening of June 11, 1987, the defendant shot Larry Whisby four times in the apartment parking lot where defendant resided with his girlfriend, at 1221 Banneker Avenue in north Minneapolis. The victim died as a result of exsanguination (blood loss) from two of the wounds he suffered. The entrance of two wounds showed signs of stippling, indicating close proximity of the firearm during discharge. One of the "stippled" wounds was a lethal injury.

On that day between noon and 3:30 p.m. defendant left the apartment building with his friend Pat Kelly, who also resided there. The two intended to purchase beer. Meeting a group gathered outside the building who were of like mind, defendant and Kelly joined them, pooling their money for two collective alcohol purchases. Robert Thames, a friend of defendant, testified the group probably drank about two beers each from the first purchase. Neither Thames nor the defendant could say, however, how much Whisby or the defendant actually drank. The second purchase consisted of a 12-pack and a fifth of wine for the 13-17 person group. Defendant also testified he spent much of the previous evening drinking about 32 beers, but this testimony was not corroborated.

During the course of the afternoon Whisby and defendant began to have words, which lasted off and on for several hours. Defendant testified the argument started when Whisby "boguarded" (took without permission) a bottle of beer, which led to name-calling. Defendant testified Pat Kelly suggested they go and get their own beer and sit by themselves, which they did, additionally buying wine coolers for their girlfriends. Initially Kelly, defendant and Velma Nelson, defendant's girlfriend, were in front of the building on the railing. Whisby continued with the argument, using profanity.

Defendant testified Whisby asked for a drink and, when refused, threatened the defendant and was "talking crazy." Whisby called him a "punk m_____f_____," threatened to take a drink, and swung at defendant, who ducked. Whisby fell against some cars as a result of the errant swing. Defendant's group then moved to the stoop on the side of the building. Whisby followed them and continued arguing and shouting.

Whisby returned to the other side of the parking lot about the time Thames and Darren Johnson drove up. Whisby went to the car and, according to Thames, beat on the hood and spoke with Thames. Whisby said, "These guys don't know me, man. They're f______ with me. * * * I'm going to do something to him."

At this point, according to Velma Nelson's testimony, defendant told her to go to their apartment and get a gun, which she did. When Nelson returned she laid the gun on the stoop. Three or four minutes after Nelson returned with the gun, Whisby started back to the stoop. Thames unsuccessfully tried to dissuade Whisby from approaching defendant, and even tried three times to physically prevent Whisby from leaving the area of the car. Whisby, a big man, was not deterred from confronting the defendant and twice lifted Thames out of his way and set him on the car. Finally, Whisby simply swung Thames to the ground, causing Thames' glasses to slip off. Witnesses testified Whisby began walking quickly toward defendant. All the witnesses agreed that during his approach he was shirtless and had no weapons in his hands or visible on his person. As Whisby approached, Nelson heard him say, "I'm going to kill some niggers and poo butt punks * * *." Defendant also heard Whisby say he was going to kill someone.

Some witnesses testified defendant got up from the stoop and walked toward the approaching Whisby. Other witnesses reported the defendant merely stood, then shot Whisby. Both Thames and Darren Johnson, the driver of the car, testified defendant walked toward Whisby with the gun behind his back, produced the gun, and fired. Johnson reported, as did several other witnesses, that the victim stopped when defendant produced the gun and asked or indicated with his hand that defendant not shoot. The defendant then shot the victim twice. The first shots came close together in time.

After the second shot, Whisby fell to the ground. Thames shouted to defendant he didn't need to shoot Whisby, whereupon defendant turned and pointed the gun at Thames. He then walked closer to the fallen Whisby and fired two more shots into him as he walked around his body. Before the third shot, several witnesses heard the victim ask, or indicate by hand gestures, that defendant not shoot again. Darren Johnson testified defendant asked the fallen Whisby, "What are you going to do now?" before firing the third and fourth shots and leaving the scene.

Officer Kimberly Lund testified she found Whisby's body 30-40 feet from the stoop. The jury also received a scale drawing of the parking lot and surrounding buildings, showing the exact location of the pools of blood from the victim's body relative to the buildings.

On June 14, 1987, between 5:00 and 5:30 a.m., three days after the shooting, defendant flagged down a squad car and asked if he was wanted for questioning. Officer Nelson, the driver, noticed that defendant smelled of alcohol, his speech was disjointed, and he appeared nervous. Officer Nelson admitted at trial that earlier he had said, "[O]bviously he was intoxicated from the night before." The officer in fact stated at the Rasmussen hearing that the defendant, at the time he flagged down the squad, "was obviously still under the influence from the night before * * *."

Officer Nelson took the defendant to Minneapolis Police Headquarters where he was interviewed by Lt. Keith Davidson. The interview was recorded on videotape without the defendant's knowledge. This video was shown to the jury at trial. During the interview defendant stated that on the night of the shooting he was drunk. He immediately corrected himself, however, and said he was drinking but not drunk. Defendant also said while he knew what was happening, he couldn't believe it. He added he could clearly see and hear what was happening. At the end of the interview defendant was asked about his physical condition and reported that it was fine. He was also asked about his alcohol consumption and said that on the previous day he had drunk two pints and twelve cans of beer, but his last drink was at 1:00 a.m.

II.

First degree murder under Minn.Stat. Sec. 609.185(1) (1986) occurs when a person causes the death of a human being with premeditation and with intent to effect the death of such person. State v. Lloyd, 345 N.W.2d 240, 244 (Minn.1984). Defendant raises claims of insufficiency as to elements of premeditation and intent. Defendant also raises a claim of insufficiency as to the state's burden to prove his acts were not justified, under Minn.Stat. Secs. 609.06 (1986) and 609.065 (1986), or provoked, as described in Minn.Stat. Sec. 609.20 (1986).

III.

The standard of review of a jury conviction in an insufficiency-of-evidence appeal is whether, viewing the evidence and any reasonable inferences that could be drawn therefrom in a light most favorable to the state, the jury could reasonably find the defendant guilty beyond a reasonable doubt. State v. Bias, 419 N.W.2d 480, 484 (Minn.1988); State v. Wahlberg, 296 N.W.2d 408, 411 (Minn.1980). In conducting this review, the court assumes the jury believed the state's witnesses and disbelieved evidence to the contrary. Wahlberg, 296 N.W.2d at 411. The jury determines the credibility and weight to be given the testimony of witnesses. Bias, 419 N.W.2d at 484. It is in light of this standard of review that we examine defendant's claims.

Intent

Defendant argues there was insufficient evidence to establish an intentional killing. In State v. Bryant, 281 N.W.2d 712, 714 (Minn.1979), we said a jury could reasonably find an intent to kill where the evidence showed multiple gunshots, the last two coming at close range. In this matter there were four gunshot wounds. The second set of shots came after a short pause and after defendant approached and walked around the fallen victim. The jury could reasonably have concluded, based on the testimony of the medical examiner and Officer Drake Powers regarding the proximity of a firearm necessary to cause stippling, that de...