State v. Forsman

• Decision Date: 02 September 1977
• Docket Number: No. 46927,46927
• Citation: 260 N.W.2d 160
• Parties: STATE of Minnesota, Respondent, v. David FORSMAN, Appellant.
• Court: Minnesota Supreme Court

Page 160

260 N.W.2d 160

STATE of Minnesota, Respondent, v. David FORSMAN, Appellant.

No. 46927.

Supreme Court of Minnesota.

Sept. 2, 1977.

Rehearing Denied Dec. 12, 1977.

Syllabus by the Court

1. The distribution of heroin by direct injection into the body of another is a felony "upon or affecting the person whose death was caused" thereby and punishable under the felony-murder rule, Minn.St. 609.195(2).

2. Defendant was not denied a fair trial by admission of evidence of other crimes.

3. Once the state has given notice as required by Rule 7.02, Rules of Criminal Procedure, of its intent to introduce evidence of other crimes, the other Spreigl-Billstrom procedures become mandatory only upon the defendant's objection and/or request. The trial court should, sua sponte, give an unequivocal limiting instruction both at the time the evidence is admitted and at the close of trial, but in the absence of a request, its failure to do so in this case was not reversible error.

Thomson, Wylde, Nordby, Blethen & Peterson, Bailey W. Blethen and Jack S. Nordby, St. Paul, for appellant.

Warren Spannaus, Atty. Gen., Richard G. Mark, Asst. Atty. Gen., Frederick S. Suhler, Jr., Sp. Asst. Atty. Gen., St. Paul, John Corbey, County Atty., Mankato, for respondent.

Heard before PETERSON, KELLY, and SCOTT, JJ., and considered and decided by the court en banc.

PETERSON, Justice.

Defendant, David Forsman, was found guilty by jury verdict of two counts of distributing heroin and one count of third-degree murder for the death of Randy Winters, who died after defendant allegedly injected heroin into his body. On appeal from the judgment of conviction and from denial of his post-trial motions, defendant contends that the evidence was insufficient to support a finding that the quantity of morphine ¹ found in Winters' body caused his death; that drug distribution felonies are not "inherently dangerous" and should not invoke the felony-murder rule; and that defendant was denied a fair trial by the admission of evidence of other crimes. We affirm.

On October 3, 1975, Miles Miller brought decedent, Randy Winters, to the emergency room at St. Joseph's Hospital in Mankato, where Winters was pronounced dead. The time of his death was estimated at 10 p. m. that day. An autopsy revealed the morphine content in his blood ² but no morphine in his urine, which placed the time of the injection at around 9 p. m. The autopsy also revealed 6 needle marks in the bend of the right arm, 6 on the back of the left hand, and 23 on the front of the left knee. ³

Miller was the prosecution's major witness at trial and gave this version of the relevant events. On October 3, 1975, Miller drove Winters to the farmhouse rented by defendant and Pam Johnson about 16 miles southeast of Mankato. Miller and Winters arrived some time between 7 and 9 p. m., with the purpose of purchasing heroin from defendant. They waited while a woman delivering Tupperware spoke with defendant. ⁴ When she left, defendant came into the room where Miller and Winters were waiting. After a brief discussion regarding how much heroin they desired, defendant left and returned to the room with three small paper packages containing heroin, for which Miller and Winters paid him $150. There was a package of needles and syringes in the room. Defendant suggested that Miller and Winters split one of the bags of heroin. He placed approximately half of one package on a spoon, added water, held a match under it until it boiled, "took the needle off the syringe and wadded up a little piece of cotton and filtered it into the syringe and then put the needle back on." Defendant injected Winters in the arm, and within seconds Winters "pass(ed) out." Upon Miller's request, defendant injected Miller with a little less than the remaining solution. ⁵ Defendant and Miller carried Winters to Miller's automobile and Miller drove off. He returned several minutes later, worried about Winters, whose breathing had slowed. Defendant told Miller to take Winters to the hospital in Mankato but declined to accompany them and advised Miller not to mention where they had been. When later informed of decedent's death, defendant stated, "Yes, I thought he would."

Defendant testified to a different version of the facts. According to him, no heroin was injected at his house on the evening of October 3. Rather, Miller and Winters had been drinking when they arrived at his house between 8:30 and 9 p. m., and Miller told defendant that Winters "had done" some heroin earlier in the evening. Miller wanted to buy some heroin from defendant, but defendant told him he had none. ⁶ Meanwhile, Winters was having difficulty staying awake and began to snore loudly. They carried him to the car; Miller left but returned shortly and defendant then advised him to drive Winters to the hospital.

1. The first issue we reach is defendant's contention that a drug distribution felony, voluntarily solicited by a person whose death results therefrom, should not invoke the felony-murder rule, Minn.St. 609.195(2), because the felony is not "inherently dangerous." In his brief, defendant writes: "This issue arises not from a reading of the third degree murder statute, but from a review of the common law in the United States out of which the felony-murder rule has developed."

Defendant's argument is misdirected. Because common-law crimes were abolished by adoption of our criminal code, any analysis of the applicability of a penal statute must begin with a reading of the statute. No act is a crime unless so defined by a statute. Minn.St. 609.015. It is the exclusive province of the legislature to define by statute what acts shall constitute a crime and to establish sanctions for their commission; our consideration of penal statutes is limited to determining whether the statute infringes upon any individual's constitutional rights. State v. Bean, 199 Minn. 16, 270 N.W. 918 (1937); State v. Mathiasen, 273 Minn. 372, 141 N.W.2d 805 (1966). Resort to common-law rules is proper but only to aid in statutory construction (Minn.St. 609.015, subd. 1); e. g., where the language of a statute based on the common law is doubtful. State v. Cantrell, 220 Minn. 13, 18 N.W.2d 681 (1945). Where the language of a penal statute, like that of any other statute, is clear, we do not resort to construction aids. State v. End, 232 Minn. 266, 45 N.W.2d 378 (1950). We may not disregard the letter of the law "under the pretext of pursuing the spirit." Minn.St. 645.16.

The statute at issue in this case, Minn.St. 609.195, provides:

"Whoever, without intent to effect the death of any person, causes the death of another by either of the following means, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years:

"(2) Commits or attempts to commit a felony upon or affecting the person whose death was caused or another, except rape or sodomy with force or violence within the meaning of section 609.185."

The language of this provision is unambiguous and incorporates no common-law terms. The distribution of heroin by direct injection into the body of another ⁷ is a felony "upon or affecting the person whose death was caused" thereby. Because the statutory language applies to the act for which defendant was convicted, we need not decide how the rule which developed at common law to limit the felony-murder doctrine to felonies "inherently dangerous" to human life would apply to this case. ⁸ We do note that the "inherently dangerous" limitation developed to alleviate the harsh consequences of the felony-murder rule as lesser and lesser crimes, particularly property offenses, were made felonies. ⁹ By including the words "upon or affecting the person" in Minn.St. 609.195(2), the legislature has ensured that a conviction for third-degree murder will not result from a mere property offense.

2. Defendant's principal argument is that he was denied a fair trial by the admission of evidence of other crimes. He argues that evidence of a sale by defendant on December 10, 1975, of narcotics to an undercover agent was not admissible under any exception to the general rule excluding evidence of other crimes, and that other evidence which might fall within an exception was improperly admitted in the absence of compliance with the Spreigl-Billstrom ¹⁰ procedural requirements.

In addition to the December 10 sale of narcotics, the state introduced substantial evidence of other crimes, including testimony relative to a transaction on September 27 similar to that of October 3; drug paraphernalia; and circumstantial evidence of sales activity at defendant's residence.

Miller testified that on Saturday, September 27, he and Winters arrived at defendant's residence at approximately 2 p. m., with the purpose of purchasing drugs. Donnis Volk, Winters' brother-in-law, accompanied them. With defendant, the three went upstairs. Miller and Winters bought one $50 bag of heroin, and defendant injected each with half in the same manner as described above. Volk corroborated Miller's testimony relative to the injection by defendant, but he did not know where the heroin had come from; i. e., whether defendant sold it to them or Winters or Miller brought it along.

Defendant agreed that Winters, Volk, and Miller stopped at his house on September 27. But according to defendant, Winters brought heroin with him and asked defendant if the latter had equipment with which defendant would be willing to inject Winters. Although defendant stated that he did not believe he had ever told Winters that he himself used heroin, he did not think it strange that Winters asked if he had equipment and if he would perform the injection. At any rate, defendant procured the needle and syringe which he testified he kept outdoors, away from the house, and injected both Winters and Miller.

As required by Rule 7.02, Rules of Criminal Procedure, ¹¹ the state had given defendant written...