State v. Hannon

• Decision Date: 18 August 2005
• Docket Number: No. A04-434.,A04-434.
• Citation: 703 N.W.2d 498
• Parties: STATE of Minnesota, Respondent, v. Kevin Terrance HANNON, Appellant.
• Court: Minnesota Supreme Court

703 N.W.2d 498

STATE of Minnesota, Respondent, v. Kevin Terrance HANNON, Appellant.

No. A04-434.

Supreme Court of Minnesota.

August 18, 2005.

John Stuart, State Public Defender, Leslie Joan Rosenberg, Assistant Public Defender, Minneapolis, MN, for Appellant.

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, St. Paul, MN, Janelle Kendall, Stearns County Attorney, St. Cloud, MN, for Respondent.

Heard, considered, and decided by the court en banc.

OPINION

ANDERSON, G. BARRY, Justice.

Kevin Terrance Hannon was charged with and convicted of, among other offenses, the first-degree premeditated murder of his girlfriend, Deborah Tolhurst. Hannon and Tolhurst lived together in St. Cloud, Minnesota and had what was, at best, a rocky relationship; for example, Hannon remarked that he worried about Tolhurst killing him in his sleep and that he "could kill" Tolhurst.

On September 21, 1999, Hannon telephoned Jeffrey Baker, a Sherburne County investigator with the Central Minnesota Drug Task Force. Hannon had previously offered to work as an informant for the task force, and was calling to set up a controlled drug buy from a suspected dealer. Hannon called Baker again at about 1:15 p.m. from the lobby of J.D. Beamer's, a bar approximately four blocks from Hannon's apartment, to talk in more detail about the controlled buy. Baker noticed that Hannon's speech was slurred, and Hannon admitted that he had been drinking. Two servers at J.D. Beamer's saw Hannon at the bar twice in the early afternoon, and the bar's surveillance tape shows Hannon at the bar during that period of time. Baker and another officer arrived at the bar at 1:30 p.m., but Hannon was not there — he had gone to a nearby liquor store to purchase vodka. As the officers left the bar, they encountered Hannon leaving the liquor store and discussed the controlled buy. At 2:20 p.m., in the presence of the officers, Hannon called the suspected dealer, who told Hannon to call back the next day. Baker then drove Hannon home, but at Hannon's request dropped him off a couple of blocks from Tolhurst's apartment complex at about 2:45 p.m.

When an apartment complex resident, Pamela Cavegn, checked her mail between 3:00 and 4:00 p.m., she saw Hannon walking toward the Hannon/Tolhurst apartment carrying two bottles of vodka. When she left her apartment again to take out the trash some time between 4:30 and 6:00 p.m., she heard Tolhurst screaming at Hannon. Ginger Claseman in Apartment 306, directly adjacent to the Hannon/Tolhurst apartment, heard "thumping" sounds and yelling from the apartment at about 6:30 p.m. These sounds continued intermittently for an hour to an hour and a half. Claseman did not leave her apartment because she did not know if it was safe to do so, and did not call police because she did not own a telephone.

At approximately 9:00 p.m., private security guard Joshua Fredrickson noticed black smoke emitting from the bedroom window of Hannon's apartment as he drove to the apartment building to conduct a walkthrough. Fredrickson called police, went to the third floor, and saw smoke emerging from the bottom and sides of the door to Hannon's apartment. After pounding on the door and yelling, Fredrickson opened the unlocked door and attempted to enter, but turned back because of the thick, black smoke. Firefighter Steve Richardson arrived shortly thereafter, noticing the smoke and a woman screaming for help from an adjacent apartment. Richardson made his way to Hannon's apartment, discharged a burst of water, and began searching through the apartment on his hands and knees. He found Tolhurst dead in the bedroom next to the bed, face-down, with her hands behind her back. An autopsy later revealed that Tolhurst's arms were bound behind her with duct tape, and that duct tape was also used on her legs and mouth. Gary Fletcher, the second firefighter to reach the scene, observed that the mattress was entirely destroyed by the fire, but nearby pieces of furniture were not, leading Fletcher to conclude that an accelerant had been used.

Hannon was seen at J.D. Beamer's bar some time after 8:30 p.m. At 10:30 p.m., a clerk at Little Duke's, a nearby convenience store, saw Hannon at the store. Hannon made a telephone call from the store and left in a taxi. Police apprehended Hannon at the St. Germain Towers Apartments, hiding in the bedroom of an acquaintance's apartment, on the evening of September 22, 1999.

During Hannon's incarceration following his arrest, he met fellow prisoner Walter Christensen, who was lodged in the Stearns County jail as a result of a DWI conviction. Christensen asked Hannon why he was in custody. Over the course of several conversations, Hannon admitted killing Tolhurst and explained the murder in detail. Hannon told Christensen that a verbal argument had escalated into physical conflict, and that he then began repeatedly hitting Tolhurst. Hannon told Christensen that Tolhurst fell down, and that he then proceeded to kick her "all over." Sometime during the fight, Tolhurst told Hannon she had AIDS. Hannon also admitted binding Tolhurst, and then throwing a burning bag at her feet before leaving the apartment. Hannon made similar admissions to Mark Schendzielos, who was incarcerated at the Stearns County jail with Hannon from September to October of 1999. Schendzielos and Christensen voluntarily revealed the communications with Hannon to police without any promises or inducements.

An autopsy indicated that the cause of Tolhurst's death was the beating, which lasted at least four minutes, but may have lasted much longer. Tolhurst died before the fire was set. She had sustained several fractures and injuries to the face, ribs, neck, and chest, consistent with injuries caused by stomping, kicking, and punching. She died between 6:00 and 9:00 p.m. on September 21, 1999.

Investigators found several bottles of alcohol in the apartment, including several plastic bottles of vodka—a possible accelerant. They also found a roll of duct tape in a box next to the refrigerator. The smoke detector was disarmed, and the living room telephone cord was cut. Investigators also found a severed lamp cord and a severed electrical transformer cord. Two more cut telephone cords were found across or under Tolhurst's body in the bedroom.

A Benton County deputy sheriff, off duty the day of the murder, arrived at J.D. Beamer's at approximately 9:00 p.m. The next morning he noticed a dirty, bloodstained denim shirt in his pickup. When he learned about the murder near Beamer's, he brought the shirt to the St. Cloud police department. The two servers who saw Hannon at the bar the previous day identified the shirt as the one Hannon had been wearing. BCA Forensic Scientist Ann Gross obtained a DNA profile from the blood on the shirt matching the victim, and also obtained a DNA mixture from sloughed-off skin cells on the shirt collar. She testified that the DNA mixture contained the DNA of at least two individuals, and that she was able to identify a predominant DNA profile in the mixture. That profile matched Hannon's profile, and she testified that the profile would not be expected to occur more than once in the world population among unrelated individuals.

After a jury trial, Hannon was convicted of four counts of first-degree murder and one count of second-degree murder. We reversed those convictions and remanded for a new trial. State v. Hannon, 636 N.W.2d 796 (Minn.2001).

At the second trial, Hannon called John Hackbarth, who had also been incarcerated with Hannon, as his only witness. Hackbarth had approached police with information about Hannon in hope of gaining some benefit for himself. The defense sought to use Hackbarth to demonstrate that jail informants or witnesses, in general, are not reliable. On the stand, Hackbarth twice disobeyed the district court's admonishment to make no reference to Hannon's prior trial. Thereafter, the district court halted Hackbarth's live testimony and instead read a summary of Hackbarth's testimony, prepared by the district court and attorneys for both parties, to the jury.

Hannon, in his second trial, was charged with (1) first-degree premeditated murder under Minn.Stat. § 609.185(1) (1998); (2) first-degree felony murder while committing or attempting to commit kidnapping for the purposes of facilitating a felony under Minn.Stat. §§ 609.25, subd. 1(2) (2004), 609.185(3) (1998); (3) first-degree felony murder while committing or attempting to commit kidnapping for the purposes of committing great bodily harm or terrorizing another under Minn.Stat. §§ 609.25, subd 1(3); 609.185(3); (4) first-degree felony murder while committing or attempting to commit arson under Minn.Stat. § 609.185(3); and (5) second-degree intentional murder under Minn.Stat. § 609.19, subd. 1(1) (2004). The district court instructed the jury on each crime charged, but refused Hannon's request that the jury also be instructed on the lesser-included offenses of first-degree heat-of-passion manslaughter under Minn.Stat. § 609.20(1) (2004), and second-degree unintentional felony murder under Minn.Stat. § 609.19, subd. 2(1) (2004). The jury returned a guilty verdict on each charge for which they received instructions. Hannon was convicted of first-degree murder while committing or attempting to commit a kidnapping for the purposes of facilitating a felony and was sentenced to life in prison without the possibility of release under Minn.Stat. § 609.106, subd. 2(2) (2004). We affirm.

Hannon raises the following five issues in this appeal:

(1) Whether the district court violated Hannon's right to present a defense by ordering the cessation of testimony by the sole defense witness after the witness twice violated the district court's instruction to make no reference to Hannon's previous trial;

(2) Whether the district court's examination of Hackbarth and preparation of the summary of his testimony in the presence of...