State v. Leinweber

• Decision Date: 04 April 1975
• Docket Number: No. 43906,43906
• Citation: 228 N.W.2d 120,303 Minn. 414
• Court: Minnesota Supreme Court
• Parties: STATE of Minnesota, Respondent, v. Harry Alexander LEINWEBER, Appellant.

Page 120

228 N.W.2d 120

303 Minn. 414

STATE of Minnesota, Respondent, v. Harry Alexander LEINWEBER, Appellant.

No. 43906.

Supreme Court of Minnesota.

April 4, 1975.

Syllabus by the Court

1. In a homicide prosecution where defendant is charged with murder in the second degree (Minn.St. 609.19) arising out of the shooting death of his wife and found guilty by a jury of the lesser degree of murder in the third degree (§ 609.195(1)), and the evidence warrants the submission of lesser degrees of homicide, including manslaughter in the first degree (§ 609.20(1)), it is prejudicial error to deny defendant's request to include submission of such lesser degree.

2. In homicide prosecutions tried by a jury, it is the trial court's duty in the exercise of its discretion to submit such lesser degrees of the offense charged as the evidence warrants, and neither the prosecution nor the defense can limit submission of lesser degrees.

C. Paul Jones, Public Defender, David G. Roston, Asst. Public Defender, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, Keith M. Brownell, County Atty., Michael R. Dean, Asst. County Atty., Duluth, for respondent.

Heard before ROGOSHESKE, KELLY, and YETKA, JJ., and considered and decided by the court en banc.

ROGOSHESKE, Justice.

Defendant, Harry Alexander Leinweber, was charged by information with murder in the second degree for the shooting death in June 1971 of his wife. Following an 18-day trial, the jury found him guilty of the lesser offense of murder in the third degree, and he was sentenced to imprisonment for an indeterminate term of not more than 25 years. Upon his appeal from an order denying his motion for a new trial and from the judgment of conviction, he alleges as prejudicial errors the denial by the trial court of his request to instruct the jury on the lesser offense of first-degree manslaughter and improper prosecutorial cross-examination. We hold that the refusal of the trial court to submit first-degree manslaughter prejudiced defendant's right to a fair trial, reverse defendant's conviction, and order a new trial.

Defendant, 60 years old at the time of trial in 1972, had been employed since 1946 as a 'boilermaker welder,' a job which necessitated very frequent travel. His first wife, after 27 years of marriage, died in 1959, leaving two children. In 1965, defendant's union sent him to Virginia, Minnesota, to work at the taconite plant, where he met Louise Bronich Rozinka and married her in 1966. She was then 27 years old. After their marriage, defendant, Louise, and her three children by a prior marriage--Dee Anne (age 15 at the time of trial), Kelly (age 12), and William (age 11)--lived together although defendant continued to travel, living in 11 states in 5 years as he moved to various jobs. At times the family accompanied him and at times they remained in Virginia, where they finally settled in 1969.

The testimony as to the relationship between defendant and his wife and whether their marriage was relatively peaceful or increasingly tumultuous was lengthy and conflicting. While there was no eyewitness to the shooting death, which occurred in the kitchen of the family home shortly before 1 a.m. on June 26, 1971, defendant in his testimony admitted firing the fatal shot from his wife's .22-caliber semi-automatic rifle but claimed he was in the act of dislodging jammed shells and was unaware of her presence. The jury was thus left with the task of reconstructing the events surrounding the shooting and evaluating the state of mind of defendant to resolve the state's claim that the shooting and death were intentional against defendant's insistence that they were an accident, and to determine whether they constituted any degree of homicide. See, State v. Slack, 295 Minn. 518, 202 N.W.2d 876 (1972).

The trial court instructed the jury as to murder in the second degree, murder in the third degree, and manslaughter in the second degree. ¹ Defendant's requested instruction for manslaughter in the first degree, objected to by the state, was refused by the trial court for the stated reason that under the statutory definition (Minn.St. 609.20(1)) ² 'not only does the defendant completely repudiate such a concept, but there is no testimony in this case of what words were spoken, or what acts were performed by any one.' The circumstantial evidence viewed most favorably to the prosecution required submitting the offense charged--murder in the second degree. Testimony by decedent's uncle of defendant's threat 6 weeks before the shooting to 'kill' his wife and by her son of deceased's dying outcries, coupled with the evidence of an increasingly discordant marital relationship, would have permitted the jury to infer an intent to cause death. Similarly, submission of the lesser degree of murder in the third degree, a killing by acts 'evincing a depraved mind,' was arguably justified where the trial court, as the record discloses, relied upon our statement in State v. Mytych, 292 Minn. 248, 259, 194 N.W.2d 276, 283 (1972), a decision issued during the trial, that '(a) mind which has become inflamed by emotions, disappointments, and hurt to such degree that it ceases to care for human life and safety is a depraved mind.' ³ Clearly, the lesser degree of manslaughter in the second degree was properly submitted, as the jury might reasonably have inferred from defendant's own factual account of the shooting that, although he claimed it was a 'total accident,' his actions in causing the rifle to discharge were culpably negligent and created an unreasonable risk of causing great bodily harm or death to another.

However, our reading of the record compels the conclusion that an instruction pursuant to defense counsel's request on first-degree manslaughter should also have been submitted. The court's refusal to do so failed to properly recognize, in this unwitnessed shooting, the jury's task of reconstructing what actually occurred prior to and at the time of the shooting. In doing so, the jury was at liberty to credit or reject not only any part of defendant's testimony but also any other testimony, including that presented by the state. Thus, the mere fact that defendant's testimony repudiated a heat-of-passion shooting did not preclude the jury from finding the facts supporting a conclusion that the shooting death was neither deliberate nor accidental but some lesser degree of homicide. It is probable that the jury may have concluded that the lesser degrees submitted did not fit its reconstruction of the facts of the tragedy because the jury, after requesting a 'written' explanation of the difference in the degrees of homicide and being orally reinstructed in response, spent some 19 or 20 hours deliberating. The jury might reasonably have inferred from the testimony and circumstantial evidence that this was a marriage under increasing emotional strain, resulting in anger and frustration on the part of both deceased and defendant as reflected in their habitual arguing when living together and in their correspondence when defendant was away from home. On the day preceding the shooting, the signs of stress in the marriage were particularly apparent. Defendant had frequented a number of local bars during the day and evening, and heated arguments between defendant and decedent had occurred. One witness testified that about 10 a.m. June 25 the deceased had entered a bar where defendant had taken deceased's 11-year-old son, William, and had profanely berated defendant in a voice so loud it could be heard in the street. Following this incident, decedent went with William to the office of a lawyer. Defendant knew of this visit and questioned William about it, and the jury, from earlier testimony that decedent had been contemplating divorce proceedings, could have inferred that defendant knew of the purpose of her visit. There was also considerable testimony that decedent had a loud and vulgar tongue and frequently castigated defendant in vile terms. Additionally, William testified that he was awakened just prior to his mother's death. Reporting the shooting to the police, he related that his parents were arguing so that he couldn't sleep, that there was a gunshot, and that he saw his mother lying on the floor. He testified that she cursed and swore at defendant for 2 minutes before she expired. From this and other testimony, the jury might reasonably have inferred that defendant, frustrated and desperate about the apparently imminent breakup of his marriage, intentionally shot his wife in the heat of passion aroused by bitter domestic argument. Where such inferences are supported by the evidence, it was prejudicial error to deny the requested instruction on first-degree manslaughter and a new trial must be ordered. State v. Abdo, 149 Minn. 195, 183 N.W. 143 (1921); State v. Jordan, 272 Minn. 84, 136 N.W.2d 601 (1965).

The difficult problem confronting a trial court of when instructions on lesser degrees of homicide should be given in a case such as this is often not easy to resolve. ⁴ It can be argued from a theoretical standpoint that the prosecutor should have the right to prevent the submission of lesser degrees of the offense charged, since he initially determines whether and what charge to present to a grand jury or to file. Furthermore, defendant, if acquitted of the charged offense, cannot complain, for he may have escaped possible conviction of a lesser offense. ⁵ Conversely, where a defendant is confronted with a specific single charge, and defense counsel after full investigation advises defendant of the probability of acquittal and accordingly prepares to meet that charge, he ought, consistent with the adversary nature of the proceedings, to be able to prevent submission of lesser degrees. Compounding defendant's inability to do so is the situation where, as here, other lesser degrees with prosecutorial consent are given, but one which defense counsel...