State v. McCormick, A12–1253.
| Decision Date | 15 October 2013 |
| Docket Number | No. A12–1253.,A12–1253. |
| Citation | 835 N.W.2d 498 |
| Parties | STATE of Minnesota, Respondent, v. Kevin Thomas McCORMICK, Appellant. |
| Court | Minnesota Court of Appeals |
OPINION TEXT STARTS HERE
Syllabus by the Court
When circumstantial evidence supports inferences that are inconsistent with the guilt of a criminal defendant, even when the circumstances are viewed in the light most favorable to the state, a district court errs by denying a motion for judgment of acquittal.
Lori Swanson, Attorney General, St. Paul, MN; and Richard C. Mollin, Jr., Clearwater County Attorney, Bagley, MN, for respondent.
Robert M. Christensen, Robert M. Christensen P.L.C., Minneapolis, MN, for appellant.
Considered and decided by CONNOLLY, Presiding Judge; STONEBURNER, Judge; and RODENBERG, Judge.
On appeal from a grant of a new trial after a jury verdict finding appellant guilty of second-degree manslaughter, appellant argues that (1) the district court erred by not granting a motion for judgment of acquittal and (2) he is protected from retrial by the double jeopardy provisions of the United States and Minnesota Constitutions. We reverse.
On the evening of November 5, 2010, appellant Kevin McCormick discovered a deer stand, which he believed was located on his property.1 The deer stand was a raised platform supported by one-inch metal tubing. The stand had a square base measuring between three feet and five feet on each side with an elevated plywood floor and a canvas tarp, which was held up by a metal rail around the seating area. Appellant became angry about the location of the deer stand. He approached a hunting party that included J.B., a retired man in his 60s, and 11 other individuals, and informed them that the deer stand was encroaching on his property. None of the members in the hunting party admitted owning the deer stand.
The next day, November 6, was the opening day of deer-hunting season. According to the other members of his hunting party, J.B. appeared cheerful and talkative early that day. At about 10:00 a.m., and after J.B. had taken a position on the deer stand described above, appellant again approached the deer stand and accused J.B. of trespassing. During their interaction, the deer stand fell. That evening, J.B. was taken by ambulance to the hospital where hospital personnel discovered that J.B. had sustained a dislocated shoulder, multiple broken ribs, and thoracic spinal fractures. On November 24, J.B. died from complications of these injuries. Whether J.B. sustained these injuries when the deer stand fell and whether the fall from the stand on the morning of November 6 was the cause of J.B.'s death were in dispute at trial.
Appellant is the only surviving eyewitness to the fall of the deer stand on the morning of November 6. There were, however, other hunters in the vicinity who were able to hear appellant's encounter with J.B. N.M. and R.R., who were members of a separate hunting party, testified that they heard a discussion between two people in the vicinity of J.B.'s deer stand. N.M. testified that he heard two voices talking, a person angrily shout “get out,” followed by a crash or thud, and then the sound of an all-terrain vehicle (ATV) driving away. R.R. testified that he heard one soft voice and one loud voice. The loud voice made accusations of trespassing. He heard the loud voice scream “get out” and then heard a loud crash. After the crash, R.R. heard one of the voices apologizing, but was unable to make out which of the two voices was apologizing.
Appellant made several statements about what occurred, including a 911 call made shortly after the incident, wherein appellant reported that “as I climbed up his stand to remove his tarp his whole stand and me and him tipped over.” Appellant told the 911 operator that J.B. “got up under his own power,” gathered his things, and rode away on an ATV. He also told a friend that he had held onto the deer stand's tarp in reaching up to hand J.B. a business card and that the stand had fallen over.
In a statement to the police after his arrest, appellant stated that he had a discussion with J.B. in which he accused J.B. of trespassing. Appellant stated that he had tried to extend his business card to J.B., and in doing so climbed onto the side of the deer stand. He felt the deer stand tipping and then it fell. Appellant stated that J.B. “was injured but at the time there was no injury there.”
Appellant demonstrated and recorded a reenactment of the events of November 6 sometime after the incident, using his cellular telephone. In the reenactment, appellant describes trying to hand J.B. a business card. In doing so, appellant claims to have stepped on the bottom rung of the stand, which can be seen wobbling in the video. In the video, appellant steps back while putting his hands up in the air and saying that he believes J.B. then stood up, but that his view was blocked by the tarp. Appellant then steps up to the deer stand, stating “but watch this, watch this, I'm not even exerting energy here, this is one hand.” He pulls on the deer stand with one hand, and the deer stand can be seen toppling.
D.Z., a member of J.B.'s hunting party, saw J.B. driving back to the campsite on an ATV shortly after 10:00 a.m. When D.Z. returned to the campsite an hour later, J.B. was sitting in a pickup truck and D.Z. helped J.B. out of the truck and helped him walk slowly to a camping chair near the camper.
The members of the hunting party noted that J.B. kept to himself and was uncharacteristically quiet during the lunch hour. L.P. observed that his face was “flushed.” However, none of them observed any indication that J.B. was in pain. T.Z., another member of the party, noticed that J.B.'s rifle was plugged with mud and helped him clean it. After cleaning the rifle, T.Z. had J.B. fire a test shot to see if the scope was working properly. J.B. fired at and hit a paper plate set up on a tree branch at a distance of 40 yards. T.Z. did not observe whether J.B. was bothered by the rifle's recoil.
After lunch, T.Z. walked with J.B. to a different deer stand, clearing a path for him. J.B. was walking slowly, hanging on to tree branches, and stopping to catch his breath now and then. J.B. later returned to the camp site to retrieve a camping chair for the second deer stand.
Between 6:00 p.m. and 7:00 p.m., L.P. returned to the cabin where J.B. was staying. He found J.B. lying in bed still dressed in his hunting gear and boots. J.B. was moaning and groaning. He was breathing heavily, struggling to breathe, and looked to be in pain. L.P. called an ambulance, which arrived and took J.B. to a hospital.
J.B.'s chair and hat were found below the deer stand to which J.B. had gone with T.Z. after lunch. A heater and soft drink were found on top of that deer stand. The record does not establish who placed these items at that location.
Appellant was charged with second-degree manslaughter. Prior to trial, appellant moved to exclude any evidence of J.B.'s statements to law enforcement or medical personnel, and to redact any such statements from his medical records. The district court granted these motions.
At trial, without prompting, D.Z. testified, Appellant's counsel immediately objected, the jury was removed from the courtroom, and appellant moved for a mistrial. The district court took the motion under advisement, called the jury back in, and gave a cautionary instruction.
Two expert prosecution witnesses testified that J.B.'s death on November 24 resulted from trauma sustained on November 6. Dr. Joseph Tieszen, a critical care doctor who treated J.B. during J.B.'s hospitalization, testified that J.B.'s condition deteriorated over the course of his hospitalization. After a surgery on November 16, to stabilize J.B.'s spine and repair other injuries, “his respiratory system never did work well.” He had a lung collapse, renal failure, atrial fibrillation and other complications. J.B. “had an acute deterioration” on November 23, according to Dr. Tieszen's testimony, and J.B. was taken off of the ventilator which had been necessary to sustain his life after the November 16 surgery. J.B. died on the 24th. On cross-examination, Dr. Tieszen testified that J.B.'s injuries would have been painful immediately, but that different people respond differently to pain.
Dr. Michael McGee, a forensic pathologist, testified that the cause of J.B.'s death was “complications of traumatic injuries and that would be due to a fall from a deer stand.” He agreed that he did not know “when the fall occurred” but that it was some time on November 6, prior to J.B.'s hospitalization.
Later, appellant called Dr. Mary Carr as a witness. Dr. Carr testified that the description of J.B.'s behavior during the lunch hour was inconsistent with the injuries which ultimately caused J.B.'s death. She opined that the injuries must have occurred between the time that J.B. had gone to the second deer stand and when he was found in bed back at the cabin. She stated that it would have been extraordinarily unusual for J.B. not to give any indication of pain at lunchtime, had he sustained these extensive injuries prior to the noon meal. She also stated that appellant would not have been able to drive an ATV or fire a rifle with broken ribs and a dislocated shoulder.
During cross examination, the following exchange occurred:
Q. Dr. Carr, in the—all the medical records you read ... In the Naytahwaush ambulance record, did you see any indication of a second or subsequent injury reported by the patient?
A. I guess I don't understand the question.
Q. Well, there was a history taken in each case, wasn't there?
A. Oh, if he had a subsequent—
Q. If there was two falls—
A. —fall?
Q. —or some other? Did you see that in any of the records?
A. He never reported that.
Q. In fact, he just reported, fell out of a deer stand?
A. Yes, h...
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