State v. Dodis

• Decision Date: 15 January 1982
• Docket Number: No. 50394.,50394.
• Citation: 314 NW 2d 233
• Parties: STATE of Minnesota, Respondent, v. John DODIS, Appellant.
• Court: Minnesota Supreme Court

314 N.W.2d 233 (1982)

STATE of Minnesota, Respondent, v. John DODIS, Appellant.

No. 50394.

Supreme Court of Minnesota.

January 15, 1982.

C. Paul Jones, Public Defender, and Robert D. Goodell, Asst. Public Defender, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, Tom Foley, County Atty., and Steven C. DeCoster, Asst. County Atty., St. Paul, for respondent.

Heard, considered and decided by the court en banc.

SCOTT, Justice.

Defendant John Dodis was convicted of murder in the second degree for the death on September 15, 1977, of George Paladie. A jury in Ramsey County District Court, in a bifurcated trial pursuant to the provisions of Minn.R.Crim.P. 20.02, subd. 6(5), found the elements of the offense of second-degree murder proved beyond a reasonable doubt, then rejected his mental illness defense.

Defendant challenges the sufficiency of the evidence and a number of trial court rulings. The primary issue raised by the appeal is whether a psychiatrist whose appointment was requested by defendant's attorney to ascertain the existence of the mental illness defense can be called by the state as a witness when the defense chooses not to use that psychiatrist's testimony.

Defendant and George Paladie were immigrants from the same town in Rumania. Defendant's family had been active in the anti-Communist movement in Rumania, while Paladie's son was a member of the Communist Party. Defendant escaped to Italy in 1975, emigrated to the United States in 1976 and claims to have been continuously persecuted by the Rumanian secret police, even in this country. In April 1977, defendant came to the Twin Cities to work. He became acquainted with Paladie, a heavy-drinking man who owned various guns. Both men were engaged in efforts to bring their children to the United States, and each was suspicious that the efforts of the other were preventing his own children from being granted admittance.

Defendant was staying in Paladie's Roseville home on September 15, 1977, when the offense for which defendant was convicted occurred. Paladie's body, wrapped in sheets and with two gunshot wounds in the head, was recovered from the St. Croix River on September 20, 1977. Defendant does not deny that he caused Paladie's death but argues, in the court below and in this court, that he acted in self-defense or in the heat of passion provoked by Paladie's threatening him with a gun and forcing him to commit humiliating acts, or that he was not guilty by reason of mental illness.

Defendant was arrested in Chicago, Illinois, on October 4, 1977. On October 5 and 6, 1977, he gave the following account of the incident to Detective Berglund. Defendant and Paladie had been drinking heavily on the morning of September 15 in Paladie's home. Paladie had threatened defendant with a .38 caliber revolver because defendant did not like Paladie's son. When Paladie was not looking, defendant had pocketed a .25 caliber revolver Paladie had left on a shelf. He could see Paladie in a mirror on the den wall as Paladie lay on a bed in the den. When Paladie threatened him again he turned quickly in the doorway, which was eight feet from the bed, and shot Paladie twice in the head. Defendant panicked when he discovered the gun Paladie was holding was "broken" and concluded that he was in trouble. After wrapping Paladie's body in bedding and turning over the bloodstained mattress, defendant put the body in the trunk of Paladie's Cadillac, took Paladie's wallet, keys and car, and went to his friend, Phillip Moise, in Newport to discuss his problem. Moise refused to help, so, after driving around for some time, defendant dumped the body in the St. Croix River north of Taylors Falls and fled to Chicago.

Defendant was indicted for murder in the first and second degree on October 12, 1977, and was arraigned and entered a not guilty plea on November 10, 1977. He entered a plea of guilty on January 13, 1978, but withdrew that plea on March 15, 1978, because he wished to raise the defenses of mental illness and self-defense. The court ordered a psychiatric examination for purposes of determining defendant's competency to proceed to trial and evaluating his mental condition at the time of the shooting. In addition to appointing its own expert, the court also permitted in its order that either the defendant or the state might retain a qualified psychiatrist or psychologist to observe the examination of the court-appointed psychiatrist and to conduct a separate examination of the defendant. One of the experts retained by defendant was Dr. Dennis Philander, who concluded, as did the court-appointed psychiatrist, Dr. Charles McCafferty, that defendant was not competent to stand trial. This conclusion was accepted at the competency hearing on May 1-2, 1978, and civil commitment proceedings were begun in Ramsey County Probate Court. Defendant was transferred to the Minnesota Security Hospital at St. Peter for evaluation on May 10, 1978. Following that evaluation, the probate court determined on July 26, 1978, that the defendant was neither mentally ill nor in need of civil commitment. Dr. Philander reexamined the defendant at the request of defense counsel on September 26, 1978, in preparation for trial. Defense counsel determined not to raise the defense of mental illness at trial.

The first jury trial, begun October 23, 1978, ended in a mistrial on October 26, 1978, because of publicity about the withdrawn plea. New counsel was substituted before the second jury trial began on April 11, 1979. This attorney again raised the defense of not guilty by reason of mental illness and requested Dr. Philander to reexamine the defendant on the eve of the mental illness stage of the trial. The defense attorney determined not to call Dr. Philander as a witness and did not put Philander's name on the witness list required of defendants by Minn.R.Crim.P. 9.02, subd. 1(3)(a).

During the mental illness portion of the trial, the prosecution, over defense objection, was permitted to call the defense psychiatrist, Dr. Philander, as a witness for the state. The state also called Dr. McCafferty, the court-appointed psychiatrist. The defendant presented no expert testimony. In closing argument, the prosecutor repeatedly called attention to the fact that the state had produced two psychiatrists and that the defendant had produced nothing but his own testimony. The jury rejected the mental illness defense and, on May 2, 1979, defendant was sentenced to a term of 0 to 40 years. This appeal followed.

The appeal raises the following issues:

(1) Was the evidence sufficient to prove beyond a reasonable doubt that defendant's killing of George Paladie was murder in the second degree and not in self-defense or in the heat of passion?

(2) Did the trial court err in refusing to give the jury defendant's requested instruction on self-defense or in failing to clarify the burden of proof on the mental illness defense?

(3) Can the state call as a witness a psychiatrist whose appointment was requested by defendant's attorney to ascertain the existence of the mental illness defense, when the defense chooses not to use that psychiatrist's testimony, without violating defendant's attorney-client privilege or right to effective assistance of counsel?

(4) Do the Minnesota Rules of Criminal Procedure prohibit an alternate juror, who did not deliberate in the determination of guilt portion of the trial, from replacing a juror dismissed prior to the mental illness portion of the trial?

(5) Did the trial court err in failing to take immediate action upon receiving a note from a juror saying she wanted to go home and in denying defendant's motion for a mistrial?

(6) Was defendant denied effective assistance of counsel when his attorney did not request a Schwartz hearing?

1. We consider first whether the evidence was sufficient to prove beyond a reasonable doubt that defendant's killing of George Paladie was murder in the second degree. The court submitted to the jury instructions on murder in the first degree,¹ murder in the second degree,² and manslaughter in the first degree.³ The court also instructed on self-defense and intoxication. The jury found the defendant guilty of murder in the second degree. Defendant argues that as a matter of law the evidence proved him guilty only of manslaughter in the first degree and, further, that the state failed to prove beyond a reasonable doubt that he did not act in self-defense.

The rules governing the scope of this court's review of the sufficiency of the evidence are well settled. We must look at the evidence in the light most favorable to the verdict for the state, acknowledging that the credibility of the witnesses is for the jury. State v. Collins, 276 Minn. 459, 469, 150 N.W.2d 850, 857-58 (1967), cert. denied, 390 U.S. 960, 88 S.Ct. 1058, 19 L.Ed.2d 1156 (1968). If the jury, acting with due regard to the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude from the evidence contained in the record that the defendant was guilty of the offense charged, we will not disturb its verdict. State v. Collins, 276 Minn. at 470, 150 N.W.2d at 858; State v. Thompson, 273 Minn. 1, 36, 139 N.W.2d 490, 515, cert. denied, 385 U.S. 817, 87 S.Ct. 39, 17 L.Ed.2d 56 (1966).

From the evidence contained in the record in this case, the jury could reasonably have concluded that defendant shot Paladie twice in the head at close range, one shot a contact wound two inches behind the left ear, not knowing whether Paladie was asleep or awake. Defendant told his friend, Phillip Moise, that he had done something bad and asked Moise's help in disposing of the body. Defendant admitted disposing of Paladie's body in the St. Croix River, forging Paladie's checks, stealing his Cadillac automobile and the cash from his wallet, and fleeing to Chicago.

Defendant's testimony that both he and Paladie...