State v. Kirch

• Decision Date: 13 August 1982
• Docket Number: No. 81-405.,81-405.
• Citation: 322 NW 2d 770
• Parties: STATE of Minnesota, Respondent, v. John Arthur KIRCH, Appellant.
• Court: Minnesota Supreme Court

322 N.W.2d 770 (1982)

STATE of Minnesota, Respondent, v. John Arthur KIRCH, Appellant.

No. 81-405.

Supreme Court of Minnesota.

August 13, 1982.

C. Paul Jones, Public Defender, and Kathy King, Asst. Public Defender, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., Gary Hansen and John H. Daniels, Jr., Sp. Asst. Attys. Gen., St. Paul, Julius Gernes, Winona County Atty., Winona, for respondent.

Considered and decided by the court en banc without oral argument.

WAHL, Justice.

Defendant John Arthur Kirch appeals from a conviction of first-degree murder in connection with the shooting death, on September 7, 1980, of John Schneider, a Winona County Deputy Sheriff. After being indicted by the Winona County Grand Jury, Kirch moved for a change of venue. He was tried in Olmsted County District Court, convicted, and sentenced to life imprisonment. We affirm his conviction.

The events culminating in Schneider's death all occurred at a trailer home in Goodview, Minnesota, where Kirch was living with his wife, Brenda, and their three children: Jana (age 12), John, Jr. (age 9) and Jackie (age 15 months). After an argument with Brenda on the morning of September 7, Kirch locked himself in the trailer with Jackie. Brenda, who objected to leaving Jackie by herself with Kirch, told him she was going to call the sheriff. Kirch responded that he would shoot or kill any-one who would come through the door.¹

Brenda went to her mother's house, where she called both Darrell Warnke, a social worker who had worked with the Kirch family, and Chief Deputy Vern Spitzer. Warnke and Spitzer agreed that, because Kirch was acting "crazy" and because there was a gun in the trailer, the sheriff should go out to the Kirch residence to try to resolve the situation. Spitzer and two other deputies, Schneider and Larson, left for the trailer court around 12 noon, Spitzer and Schneider dressed in plain clothes and driving an unmarked car, Larson dressed in his uniform and driving a marked car. At trial, Kirch admitted having seen the marked car drive up outside the trailer.

Kirch remained inside the trailer with Jackie from the time Brenda left until the deputies arrived. He testified that he got out the .22 rifle and put it together because he was worried that Brenda's brothers would come over and try to take Jackie away. He then went to a dresser drawer and got a few bullets, putting one in the gun and the others in his pocket. After loading the gun, Kirch picked Jackie up and carried her and the rifle into the kitchen area, where he placed the gun up against the room divider between the kitchen and the living room. He then sat down at the kitchen table to have a cigarette and some pop. Kirch continued to hold Jackie during this time.

Kirch was walking back and forth with Jackie in his arms when he saw the sheriff's car pull up outside the trailer. By this time he had put an easy chair against the door and pulled the shades down. Kirch testified, however, that he was not expecting the sheriff to come out, because Brenda had failed to carry out similar threats on other occasions; in fact, Kirch said he expected Brenda herself to return soon. When Kirch saw the deputies arrive, he moved a kitchen chair so that he could kneel behind it and be out of sight of the deputies: "I thought if they couldn't see me, if I didn't answer the door, they might not think I was home and just leave." Jackie was standing beside her father as he knelt behind the chair.

Upon their arrival at the trailer, the deputies first tried to open the combination door. When they found it locked, they began knocking on it. Spitzer testified that they knocked loudly several times and shouted out, "John, Sheriff's Department, come out, we want to talk with you." When there was no response from Kirch, Spitzer continued to shout and pound on the door. After talking to a neighbor girl who had seen Kirch and Jackie inside the trailer just a short time earlier, Spitzer decided to enter the trailer.

The deputies pried open the combination door but then could not open the inside door. They remembered that Brenda had said the door did not lock properly, so Schneider, who was heavier than Spitzer, moved up and pushed the door with his shoulder. The door swung open far enough to allow the officer to enter. Schneider went in first and walked over to the area in front of the living room couch. None of the officers had yet drawn his gun.

Schneider then looked down the hallway, spotted Kirch and said to Spitzer, "Vern, look out he has got a gun." Spitzer saw Schneider reach for his gun and, as he started to pull his own gun, heard a shot ring out. Schneider took two or three steps toward Spitzer and fell on the floor near the couch. As Schneider fell, his gun went off.

Kirch testified that he was afraid the deputies were going to take Jackie away. He had the gun leaning on the back of the chair and was pointing it in Schneider's direction "to keep him from coming up and getting the baby away." He stated that he had no intention of firing the gun and that, when Schneider grabbed for his gun, "the next thing I knew my gun went off." Kirch testified that he did not aim the gun.

After the shooting, Kirch ran down the hall to the back bedroom. Spitzer called to him, "Come out, you son of a bitch, you just shot a deputy." Although Kirch said at the time that he thought they were burglars, he has admitted that he realized all along they were officers. He testified at trial that he told the deputies he thought they were burglars because he was "trying to calm them down."

Larson and Spitzer then tried to convince Kirch to come out of the back bedroom. Spitzer threw his identification wallet down the hallway so that Kirch would be certain they were officers. However, in answer to the deputies' pleas to come out, Kirch continued to respond, "Well, I don't know who you are." Finally, Deputy John Lettner arrived on the scene. He turned off the television, identified himself to Kirch and reassured him that the deputies would not hurt him if he came out. It was Lettner who ultimately persuaded Kirch to surrender himself.

When Kirch came out from the back bedroom, he was frisked and escorted from the trailer. He handed Jackie to Brenda and then was handcuffed and taken to the Law Enforcement Center. Agent Dennis Fier of the Minnesota Bureau of Criminal Apprehension and Deputy LaMar Fort searched the trailer immediately but found no one else there.

There is no question but that Kirch fired the shot that killed Schneider. The issues raised by this appeal are (1) whether the evidence is sufficient to support a conviction of first-degree murder and (2) whether a defendant's waiver of his right to a jury trial is voluntary and intelligent when it is offered in response to the trial court's refusal to rule on requested instructions prior to trial and when certain highly prejudicial testimony is relevant only if certain instructions will be given.

1. The law governing first-degree murder in the State of Minnesota is that "Whoever * * * causes the death of a human being with premeditation and intent to effect the death of such person or of another is guilty of murder in the first degree." Minn.Stat. § 609.185(1) (1980) (emphasis added). Kirch argues that the evidence will not sustain a finding of premeditation which, as defined by statute, means to "consider, plan or prepare for, or determine to commit, the act referred to prior to its commission." Minn.Stat. § 609.18 (1980).

It is well-established that, because premeditation is a product of the mind, it is incapable of direct proof: "Premeditation may be inferred from all the circumstances surrounding the homicide." State v. Gowdy, 262 Minn. 70, 75, 113 N.W.2d 578, 581 (1962) (footnote omitted). In this case, the trier of fact found that Kirch (1) stated that "he would shoot anyone that came through the door," (2) assembled a .22-caliber rifle and loaded it with live ammunition, and (3) had additional bullets in his shirt pocket and reloaded the gun after the shooting. The trial court concluded that this evidence demonstrated premeditation and intent.

Kirch does not dispute testimony that he threatened to shoot anyone who came through the door of the trailer. He argues that mere threats coupled with a homicide do not necessarily establish premeditation and intent. However, the facts of the cases he cites to support this proposition are quite different from the facts of this case. In State v. Gibbons, 305 N.W.2d 331 (1981), we ruled that the state had not established premeditation by showing that defendant had previously aimed a loaded gun at the victim, because other evidence did...