State v. Cole

• Decision Date: 05 January 1996
• Docket Number: No. C0-95-648,C0-95-648
• Citation: 542 N.W.2d 43
• Court: Minnesota Supreme Court
• Parties: STATE of Minnesota, Respondent, v. Phillip Lewis COLE, Appellant.

Page 43

542 N.W.2d 43

STATE of Minnesota, Respondent, v. Phillip Lewis COLE, Appellant.

No. C0-95-648.

Supreme Court of Minnesota.

Jan. 5, 1996.

Syllabus by the Court

Voluntary intoxication is but one of the facts the factfinder is free to consider in determining whether defendant had the requisite specific intent for conviction of intentional murder. The record in this case contained sufficient evidence to support the jury's conclusion that defendant was capable of forming the specific intent to kill.

The district court did not abuse its discretion by refusing to instruct the jury on second-degree manslaughter when evidence did not reasonably support an acquittal of the greater offense of first-degree murder and at the same time support a conviction of the lesser-included offense of second-degree manslaughter.

Lack of intent is not an element of second-degree felony murder; therefore, guilty verdicts for first-degree intentional murder of police officer and second-degree intentional murder were not legally inconsistent with guilty verdict for second-degree felony murder.

Guilty verdicts for second-degree assault, reckless handling and use or intentional pointing of a gun were not legally inconsistent.

Second-degree felony theft and second-degree assault were proper predicate felonies for conviction for second-degree felony murder.

Six five-year consecutive sentences for assault and kidnapping did not unfairly exaggerate the criminality of defendant's conduct when defendant killed a peace officer and caused numerous victims and hostages great fear of harm over an extended period of time.

Hubert H. Humphrey, III, Attorney General, St. Paul, Michael Junge, McLeod County Attorney, Jody Winters, Assistant McLeod County Attorney, Glencoe, for respondent.

John M. Stuart, Minnesota State Public Defender, Leslie J. Rosenberg, Special Assistant State Public Defender, Minneapolis, for appellant.

Heard, considered and decided by the court en banc.

OPINION

ANDERSON, Justice.

On December 15, 1989, Hutchinson police officer Michael Hogan was shot and killed while investigating the return of stolen merchandise to the J.C. Penney department store in Hutchinson, Minnesota. Petitioner, Phillip Lewis Cole, was indicted for the murder of Officer Hogan and for other crimes which occurred during a three-day period from December 15 to December 18, 1989. At trial, Cole pleaded guilty to felony theft, and a jury found him guilty of murder in the first degree (intentional murder of a peace officer); murder in the second degree (intentional murder); murder in the second degree (felony murder); five counts of assault in the second degree; three counts of kidnapping; five counts of use or possession of a dangerous weapon; and one count of felon in possession of a pistol. The district court sentenced Cole to life imprisonment for first-degree murder, 25 months concurrent to the life sentence for felony theft, 23 months concurrent to the life sentence for the conviction of felon in possession of a pistol, five years consecutive for each of the five assault convictions, five years consecutive for one of the three kidnapping convictions, and five years concurrent for the remaining two kidnapping convictions. In total, Cole was sentenced to life imprisonment, plus 30 years consecutive to the sentence of life imprisonment for the crimes of which he was convicted.

Cole made no direct appeal from his convictions but, on January 3, 1995, over four years after sentencing, Cole petitioned the McLeod County District Court for postconviction relief, seeking a new trial or, alternatively, resentencing. Cole asserted five grounds for relief, arguing, among other things, that his voluntary intoxication rendered him incapable of forming the intent to kill. The district court denied Cole's petition on its merits and its timeliness. On appeal, Cole contends that the court abused its discretion in not granting a new trial or resentencing him, and also asserts that his petition was timely. We affirm.

On the afternoon of December 15, 1989, petitioner, Phillip Lewis Cole, and his friends, Jack Rivers, Darlene Hausman and Rose Boyce, travelled by car from Minneapolis to Hutchinson for the purpose of shoplifting and returning stolen merchandise for cash. Cole and Boyce had been drinking that morning. On the drive to Hutchinson, Cole, Boyce, Hausman and Rivers continued drinking, and also consumed various drugs--heroin, Dilaudid, and marijuana.

After stopping at other retail stores in Hutchinson, Cole and his friends went to the J.C. Penney store to attempt to return merchandise that had been stolen from the store earlier that same day. Rose Boyce was the first member of the group to enter the store. She returned two nightgowns for $50. Rivers was the next member of the group to enter the store. Barbara Erickson, the clerk who waited on Rivers, asked him for some identification, and he provided a copy of a California birth certificate in the name of Gerry Rivers. Rivers successfully returned two toddler outfits for $44.

Cole, at the urging of Hausman, then went into the store and attempted to return a boy's sweater and slacks. Sharon Tupa, a clerk in the boys department, waited on Cole and began processing his return. Tupa testified that Cole seemed "a little nervous," and this caused her to become suspicious. When Tupa asked Cole for identification, he replied that he could provide a birth certificate as identification, but would have to go get it. Cole left the store, and Tupa, uncomfortable with the return, went to April Brandt, the merchandise manager, and told Brandt that the return "seemed strange." Brandt returned with Tupa to the boys department. Cole presented a birth certificate in the name of Jack Rivers as identification, and said that his wife had sent him to return the merchandise. Brandt questioned Cole about his wife, his residence and the birth certificate. Cole gave inconsistent answers to her questions and became agitated. Brandt told Cole she would need to have the return validated by the store manager. Brandt then proceeded to call the Hutchinson Police Department to inform them that she thought Cole was a shoplifter.

Officer Michael Hogan, a licensed peace officer with the Hutchinson Police Department, responded to Brandt's call and, shortly thereafter, arrived at the store, dressed in his police uniform. Brandt directed Officer Hogan to the shoe department stockroom in the back of the store where she briefed him on the situation. Brandt then returned to the retail area of the store. Brandt told Cole that there did not appear to be a problem, but the manager wanted to see the merchandise. Brandt then took Cole to the shoe stockroom where Officer Hogan was waiting to meet with him.

After Cole gave some more inconsistent answers and Barbara Erickson failed to identify Cole as the same customer who had returned merchandise earlier, Brandt, Cole and Officer Hogan went to the store office where Officer Hogan and Brandt suggested they call Cole's wife at the "Hutchinson residence" to verify his identity. Brandt was later to testify that when Cole explained the reasons for returning the merchandise, he was quite coherent and seemed to Brandt to be genuine about what he was saying. As Cole dialed the number, Brandt noticed that Cole was not dialing a Hutchinson exchange, and told Officer Hogan that she thought Cole was lying to them. Officer Hogan took the phone, spoke with the person at the other end, and ultimately identified himself to the person on the phone as Officer Hogan from the Hutchinson Police Department. Officer Hogan then told the person on the phone that he was going to take Cole downtown to find out who he really was because Cole was trying to defraud the store.

Cole then grabbed his own hair and said, "I don't need this. I don't need this," took two steps away from Officer Hogan, and turned. As he turned, Cole had a gun in his hand. Cole held his arm straight out, pointed the gun directly at Officer Hogan's head, pulled the trigger and shot Officer Hogan in the forehead above the left eye. Officer Hogan was still on the phone, not looking up, when Cole shot him. Officer Hogan died as a result of the shooting. Cole later testified that he shot Officer Hogan in part out of "fear of going back to prison for all this time," because Officer Hogan said that he was taking Cole downtown to the police station. Cole knew that he faced possible completion of a prior prison sentence in Minnesota for parole violations. That could mean his return to prison until 2006. He also faced return to prison in Indiana for offenses he committed in that state.

After the shooting, Cole turned the gun toward Brandt. Brandt fell to the floor, put her hands behind her head and waited to be shot. She testified that she thought she was dead, that her life was over and that she would never see her children again. Cole did not shoot Brandt, but left the office and ran out the front door of the store and into the parking lot, where he ran in three circles and then ran to a nearby McDonald's. After she thought Cole had left the office, Brandt crawled on her hands and knees to the phone, dialed 911, and reported that a police officer had been shot at the J.C. Penney store.

At McDonald's, Cole approached a car in the drive-thru lane driven by Greg Larson and occupied by one passenger, Joseph Miscavage. Cole told Larson and Miscavage that there had been an emergency and that he needed a ride. Larson and Miscavage denied the request for the ride. Cole walked away at first, but came back, demanded a ride, and jumped into the back seat of the car. Both Larson and Miscavage testified that Cole put a gun to the back of Miscavage's head. Cole told Larson and Miscavage not to do anything stupid, that he had just shot a police officer, and told Larson to drive him out of town. Larson drove to Minneapolis, and Cole asked to be dropped off in the...