State v. Green

• Decision Date: 03 October 1995
• Docket Number: No. C1-94-2642,C1-94-2642
• Citation: 538 N.W.2d 698
• Parties: STATE of Minnesota, Respondent, v. Marlon Rockshawn GREEN, Appellant.
• Court: Minnesota Court of Appeals

Page 698

538 N.W.2d 698

STATE of Minnesota, Respondent, v. Marlon Rockshawn GREEN, Appellant.

No. C1-94-2642.

Court of Appeals of Minnesota.

Oct. 3, 1995.

Review Granted Nov. 15, 1995.

Syllabus by the Court

1. An accused who fails to object to jury instructions on the record before the jury is charged does not waive issues of fundamental law for appeal.

2. In a trial for second degree murder where the evidence has raised the issue whether the accused acted in the heat of passion, as a matter of law, the trial court should instruct the jury that the state has to prove beyond a reasonable doubt that the accused did not act in the heat of passion.

Hubert H. Humphrey, III, Attorney General, St. Paul, Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, for Respondent State.

Richard Leroy, William Gatton, Legal Rights Center, Inc., Minneapolis, for Appellant Marlon Rockshawn Green.

Considered and decided by RANDALL, P.J., and NORTON and DAVIES, JJ.

OPINION

RANDALL, Judge.

Marlon Green appeals from his conviction for second degree murder. He argues the trial court's failure specifically to instruct the jury that the state had to prove beyond a reasonable doubt he did not act in the heat of passion violated his constitutional rights, and was in violation of state law. We reverse and remand for a new trial.

FACTS

In February 1993, Marlon Green was at a house party with his mother and his friends Tim and Essence. Green, Tim and Essence were in the living room when the victim, Laramuin Byrd, walked by. The victim wore his hat at an aggressive angle, made aggressive faces, and "threw gang signs" at Green and others. Green's mother asked Robert Fields, the man giving the party, to intervene in the situation between Green and the victim.

Even after Fields intervened, the victim started dancing with Green's mother and continued to throw gang signs at Green behind her back. Green testified he ignored the victim. After Green's mother left the house, the victim said to Green, "I'm going to f--- your mom, I'm going to rip her clothes off * * * tie her up with electrical cords, f--- her in front of you, and slit her throat." Tim slapped a gun in Green's hand and Green shot the victim. Green testified he could not remember anything after firing the first shot. There was testimony that Green left the house, and then returned to shoot the victim again as he lay on the floor.

Green was indicted on one count of first degree murder and one count of second degree murder. At the close of the state's case, the trial court granted Green's motion for acquittal on the first degree murder charge. The case was submitted to the jury on the second degree murder charge and first degree manslaughter. Green's theory of the case was that he acted in the heat of passion.

The trial court read the instructions for second degree murder, and also first degree manslaughter when that crime is charged as the primary crime. Green did not object to the instructions before the jury was charged. The jury deliberated and returned a verdict of guilty on the count for second degree murder.

After the verdict was read, Green made a motion for a new trial, arguing the trial court erred by failing specifically to instruct the jury that the state had to prove beyond a reasonable doubt that Green did not act in the heat of passion. Green's counsel stated he had objected to the absence of this jury instruction in chambers and off the record. The trial court denied Green's motion for a new trial and this appeal followed.

ISSUES

1. Did Green waive the jury instruction issue by failing to object on the record before the jury was charged?

2. Does the trial court's failure specifically to instruct the jury that the state had to prove beyond a reasonable doubt that Green did not act in the heat of passion require a new trial?

ANALYSIS

1. Waiver

The state argues Green waived any issue regarding jury instructions because his attorney did not object before the jury was charged. Generally, a defendant must object before the jury is charged to preserve an objection for appeal. Minn.R.Crim.P. 26.03, subd. 18(3); State v. Knaak, 396 N.W.2d 684, 688 (Minn.App.1986).

Even if a defendant does not timely object to jury instructions, the issue (like certain others) may be preserved for appeal if it involves matters of fundamental law. A reviewing court can reverse if the instructions were misleading or confusing on fundamental points of law such as burden of proof and presumption of innocence. State v. Butler, 295 N.W.2d 658, 659 (Minn.1980), accord Minn.R.Crim.P. 26.03, subd. 18(3) (stating that an error in the instructions with respect to fundamental law may be objected to in a motion for a new trial even if there was no prior objection).

Here, defense counsel did not object on the record before the jury was charged, even though there was opportunity to do so. The error about which Green complains, however, is fundamental law (the state's burden of proof) and may be assigned as error in a motion for a new trial. Minn.R.Crim.P. 26.03, subd. 18(3); Butler, 295 N.W.2d at 659. ¹

2. Jury Instructions

In criminal prosecutions, the state must prove beyond a reasonable doubt every element of the crime charged against the defendant. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). Due process requires the prosecution to prove beyond a reasonable doubt the absence of heat of passion or sudden provocation when the issue is properly presented in a homicide case. Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881, 1892, 44 L.Ed.2d 508 (1975). ² The presence or absence of heat of passion has been, "almost from the inception of the common law of homicide, the single most important factor in determining the degree of culpability attaching to an unlawful homicide." Id. at 696, 95 S.Ct. at 1888.

Green argues the trial court's instructions violated the Due Process Clause of the Fourteenth Amendment in the federal Constitution and also state law. Because we conclude the trial court's failure specifically to instruct the jury on the state's burden of proof on the element of heat of passion violated state law, we need not reach the issue of whether the instructions violated the Due Process Clause. Courts generally do not decide constitutional questions unless necessary and will instead adopt an available alternative ground of decision. See State v. One Oldsmobile Two-Door Sedan, Model 1946, 227 Minn. 280, 288, 35 N.W.2d 525, 530 (1948) (stating court would adopt alternative ground of decision rather than decide constitutionality of statute).

A trial court has a certain degree of latitude in the selection of language in the jury charge. State v. Gray, 456 N.W.2d 251, 258 (Minn.1990). In construing a charge to the jury, the jury instructions must be viewed as a whole to determine whether they fairly explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn.1988). The defendant in a criminal case has a right to have the jury receive clear and complete instructions in an unambiguous manner. State v. McCloud, 349 N.W.2d 590, 593 (Minn.App.1984). In charging the jury, the trial court must state all matters of law that are necessary for the jury's information in rendering its verdict. Minn.R.Crim.P. 26.03, subd. 18(5).

A person commits heat of passion manslaughter if he or she "intentionally causes the death of another person in the heat of passion provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances * * *." Minn.Stat. § 609.20(1) (1992). When the evidence raises the question of whether the accused acted in the heat of passion so as to allow a jury to consider the crime of manslaughter in the first degree, the trial court should instruct the jury with the following element:

Fourth, defendant did not act in the heat of passion provoked by such words or acts as would provoke a person of ordinary self-control in like circumstances. Even if defendant acted with intent to kill _______, if the defendant acted in the heat of passion the defendant is not guilty of murder in the second degree. However, such heat of passion is not an excuse for the killing of another person. The heat of passion may cloud reason and weaken will-power, and this is a circumstance which the law considers in fixing the degree of the crime. If the heat of passion is provoked by words or acts which would provoke a person of ordinary self-control in the same circumstances, the law provides that an intentional killing is manslaughter in the first degree.

* * * * * *

If you find that each of these five elements has been proved beyond a reasonable doubt, defendant is guilty of murder in the second degree. If you find that each of these elements has been proved beyond a reasonable doubt except that you find that it has not been proved that defendant did not act in the heat of passion, defendant is guilty of manslaughter in the first degree. If you find that any other elements has not been proven beyond a reasonable doubt, defendant is not guilty of murder in the second degree or of manslaughter in the first degree.

10 Minnesota Practice, CRIMJIG 11.14 (Supp.1995) (emphasis added). The trial court did not read CRIMJIG 11.14 to the jury. ³ The trial court failed to specifically instruct the jury on those essential portions of CRIMJIG 11.14 herein emphasized.

When instructing a jury on heat-of-passion manslaughter, a trial court should follow the words of the statute. State v. Shannon, 514 N.W.2d 790, 791 (Minn.1994). The supreme court has held that a trial court erred in altering the CRIMJIG heat of passion language to state "reasonable sober person of ordinary self-control under like circumstances" rather than "a person of ordinary self-control under like circumstances." State v. Thunberg, 492 N.W.2d 534, 536-37 (Minn.1992) (emphasis added). According to the...