State v. Malaski, C1-82-240.
| Decision Date | 25 February 1983 |
| Docket Number | No. C1-82-240.,C1-82-240. |
| Citation | 330 NW 2d 447 |
| Parties | STATE of Minnesota, Respondent, v. Daniel J. MALASKI, Appellant. |
| Court | Minnesota Supreme Court |
C. Paul Jones, Public Defender, and Sally A. Scoggin, Sp. Asst. Public Defender, Minneapolis, for appellant.
Hubert H. Humphrey III, Atty. Gen., Norman B. Coleman, Jr., and Richard D. Hodsdon, Sp. Asst. Attys. Gen., St. Paul, Larry Mickelberg, County Atty., Moorhead, for respondent.
Considered and decided by the court en banc without oral argument.
Early on April 29, 1981, defendant killed his friend, 28-year-old Elmer Egerdahl, with one shot from a military rifle at their house in Dilworth, which is in Clay County. Defendant was subsequently charged with second-degree (intentional) murder. At his trial in November of 1981, defendant claimed that he did not intend to kill Egerdahl and that the shooting was justifiable. The trial court submitted second-degree murder, first-degree (intentional heat-of-passion) manslaughter, and second-degree (culpably negligent) manslaughter. Minn. Stat. §§ 609.19, 609.20(1) and 609.205(1) (1982). The jury, which began its deliberations at 2:55 p.m. on November 11, did not return with its verdict until 10:50 p.m. the following day. It found defendant guilty of first-degree manslaughter. The trial court sentenced defendant to 43 months in prison, which is the presumptive sentence for the offense in question by a person with a criminal history score of zero at the time of sentencing.
On appeal from judgment of conviction, defendant seeks an outright reversal of his conviction or a reduction to second-degree manslaughter on the ground that the state failed to prove that the killing was either intentional or unjustified. Alternatively, he seeks a new trial on the ground that the trial court's instructions, to which defense counsel did not object, were inaccurate and confusing with respect to intent and self-defense. We reverse and remand for a new trial.
The victim had a history of violent and irrational behavior. An incident that occurred in Pennsylvania in 1974 exemplifies this. On that occasion the victim chased his wife out of their apartment with a gun and refused to let her take their child with her. When police responded to a complaint and went to the apartment and confronted him, he told them that he had thought of shooting them when he saw them coming. After handing the child to the police to give to his wife, he said to tell her that if she ever came back he would blow her brains out. After the police went outside, he opened a window in the apartment and sat in it, holding his rifle. At this point police returned to the apartment, got the gun and ammunition from him, and took him to a state hospital. His hospitalization ended a couple months later when he escaped.
In 1977 Moorhead police were called to investigate a domestic dispute involving Egerdahl, who was reportedly armed with a knife. Egerdahl "came at" one of the officers and the officer, not sure whether Egerdahl was armed, maced him. The officer then tried but failed to hold him. It took three officers to subdue him. One of these officers testified at defendant's trial that Egerdahl had acted "quite irrationally" on that occasion and that he was "tremendously strong."
Defendant became friends with the victim in 1978 and shared a residence with him on and off from that time until the victim's death. Defendant was aware of the victim's tendency to become violent when he was intoxicated. For one thing, Egerdahl often bragged about his past acts of violence, saying that he had attacked his brother with an axe or knife, that he had held his ex-wife at gun point in Pennsylvania, that he had escaped from a mental hospital, and that he had once put a knife to his ex-wife's throat. Defendant also witnessed numerous acts of violent irrational behavior by Egerdahl. In November of 1980, while he and a friend were in Seattle with Egerdahl, he witnessed Egerdahl trip a woman in a bar after she claimed that she was next in line at a pool table. In February 1981 Egerdahl killed a puppy with his bare hands as punishment for messing the floor. On one occasion Egerdahl assaulted defendant in a bar and on other occasions he assaulted friends and/or threatened to kill them. More often Egerdahl would go into an irrational rage and would throw objects and overturn or break pieces of furniture while citing his grievances and recounting his past acts of violence. On one such occasion one of his friends told him that he should watch so that he did not kill someone some day. On another occasion Egerdahl told a friend that if he ever died he would "die high."
In April of 1981 defendant, the victim, and a mutual friend, Ron Perrault, rented a small house in Dilworth. Defendant and Perrault each took rooms on the second floor and Egerdahl took a room on the first floor. They then sublet the basement to defendant's girl friend, Sue Peterson, a young woman who formerly had dated the victim.
Early on the evening of April 28, 1981, defendant, Perrault, Peterson and a young woman named Diane Martin, in whom the victim had expressed a romantic interest, began watching television. Egerdahl apparently became irked that Martin was sitting next to Perrault. While they were sitting there, Egerdahl went into the "weight lifting room," where he and defendant regularly lifted weights, and grabbed a dart board, which he threw out in front of the couch, saying, "Let's play darts." When Peterson said that they could not play darts because they did not have darts, Egerdahl took his machete, unsheathed it, and threw it in front of the couch and said that they could use that. Egerdahl then began ranting and raving and knocking over furniture, as he had done in the past so often. Defendant told Peterson and Martin that they had better leave. As they were leaving, Egerdahl called Peterson a number of names and told her never to come back. At one point he held the machete to defendant's neck. Perrault testified that Egerdahl seemed to be "taking it all out" on defendant, accusing defendant of "playing games" with his mind. Egerdahl also complained about not having a job. A number of times he jabbed the machete into the floor. Defendant and Perrault eventually calmed him down, but not before he had chopped the legs off one chair with the machete. It is undisputed that defendant remained calm during this entire outburst and did not even raise his voice. This apparently was defendant's standard response to this sort of behavior by Egerdahl.
Later that evening defendant and Perrault took Egerdahl to a bar, where they also had been late that afternoon. Egerdahl drank a number of mixed drinks, then left in defendant's van, not returning until about midnight. A witness testified that on his return Egerdahl was loud and was "picking" on everybody. This witness testified further that Egerdahl told her he was on "acid." At 12:45 a.m. the three men left the bar and returned to the house. Egerdahl drove the van at high speeds and in a reckless manner.
Once at the house, Egerdahl began gulping down beers and began ranting and raving again. At one point he smashed a beer down on the counter in the kitchen and tore the cupboard top off. Defendant called Peterson, who was awakened by this in the basement, and told her that she should stay downstairs.
Defendant then went upstairs, got out his rifle, which is a British .303 military rifle, and loaded it. He then left it and went back down to the main floor. Egerdahl became even angrier, and so defendant and Perrault decided that they should go upstairs to bed and let him cool off by himself downstairs. Asked why he did not call the police, defendant said that he feared that Egerdahl would really blow up if he did that.
Defendant testified that once he was upstairs he heard Egerdahl begin to make animal noises and also could tell that he was still tearing things up. He testified that he also heard him go to the door to the basement and threaten "to get" Peterson and everyone else. Perrault testified that he did not hear any threats, but Peterson testified that she did.
Egerdahl apparently went outside briefly, then came back in, still ranting and raving as he advanced up the steps. A moment earlier Perrault had seen defendant with the gun and told him to put it away. Defendant apparently had gone back to his room but came out again when he heard Egerdahl, who was screaming, coming upstairs. As Egerdahl came up, defendant stood at the top and told him to stay down. Perrault testified that he heard Egerdahl utter a profanity and that he heard defendant say, "Stay down, please." Defendant testified that Egerdahl said that he should pull it, that it was him or defendant. Defendant admitted knowing that Egerdahl did not have the machete but he testified that Egerdahl's hands were behind his back. He testified that although he and Egerdahl generally were of equal strength, he knew that when Egerdahl was in such a rage, Egerdahl was three times stronger than he normally was.
All this took just seconds and, when Egerdahl did not stop but kept coming, defendant fired one shot. The shot went through Egerdahl's mouth, killing him instantly. It was later determined that defendant was at least 3 feet away from him when he fired the gun.
The autopsy revealed that Egerdahl had a blood alcohol content of .17%. The tests used failed to detect any "acid" or Ephedrine, which is an "upper," in Egerdahl's blood, but did detect the presence of Ephedrine in Egerdahl's urine. Eighty tablets of Ephedrine were found in Egerdahl's pocket. The state did not rule out the possibility that Egerdahl also was on "acid." There was expert testimony by a defense witness that the tests used by the state's expert were not the best tests for determining if any "acid" or Ephedrine was in the blood. The defense expert testified that Ephedrine and alcohol, when taken together, had a...
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