State v. McCuiston, C8-93-1378

• Decision Date: 12 April 1994
• Docket Number: No. C8-93-1378,C8-93-1378
• Citation: 514 N.W.2d 802
• Parties: STATE of Minnesota, Respondent, v. Thomas Jerome McCUISTON, Appellant.
• Court: Minnesota Court of Appeals

Page 802

514 N.W.2d 802

STATE of Minnesota, Respondent, v. Thomas Jerome McCUISTON, Appellant.

No. C8-93-1378.

Court of Appeals of Minnesota.

April 12, 1994.

Review Denied June 15, 1994.

Syllabus by the Court

Where a defendant testifies he shot the victim because the victim was attempting to forcibly enter his home, the defendant is John M. Stuart, Public Defender, Bradford S. Delapena, Sp. Asst. Public Defender, St. Paul, and Stephen K. Warch, Rider, Bennett, Egan & Arundel, Minneapolis, for appellant.

                entitled to a self-defense instruction which includes the statutory language authorizing the taking of life to prevent the "commission of a felony in the actor's place of abode."   Failure to give "defense of dwelling" instruction was reversible error where an eyewitness testimony did not contradict defendant's testimony
                

Hubert H. Humphrey, III, Atty. Gen., St. Paul, and Michael O. Freeman, Hennepin County Atty., Michael Richardson, Asst. County Atty., Minneapolis, for respondent.

Considered and decided by KLAPHAKE, P.J., and SHORT and DAVIES, JJ.

OPINION

SHORT, Judge.

Thomas McCuiston appeals from a judgment of conviction and sentence for second degree felony murder. Minn.Stat. Sec. 609.19(2) (1992). We reverse and remand for a new trial.

FACTS

While standing in his porch doorway on a November evening, McCuiston shot a neighbor in the head at close range with a pistol grip shotgun. Earlier that evening, the victim's girlfriend telephoned the police because the victim was drunk, angry about money owed them by McCuiston, and talking about starting a fight with "this drug house across the street." McCuiston lived with his five-year-old son in the upstairs part of a triplex across the alley from the victim. There was a crack house on McCuiston's block, and McCuiston had purchased the shotgun to protect his son from crime in the neighborhood.

McCuiston claimed he shot the victim in self-defense. He was out walking with his son when the victim verbally accosted them, yelling racial epithets and threatening to chase McCuiston out of the neighborhood. McCuiston is a five foot, six inch tall, 126-pound African American; the victim was a six foot, one inch tall, 178-pound Caucasian. McCuiston gave his son the house keys and told him to run home. McCuiston continued to walk home with the victim yelling at him.

At his house, McCuiston climbed the stairs to the porch, entered, and locked the porch screen door. He was unable to lock the storm door because his son had the keys. McCuiston went upstairs to make certain his son was safe. When he heard someone pulling and kicking on the downstairs screen door, he grabbed his shotgun, walked downstairs, and called to his neighbor to telephone the police. McCuiston did not have a telephone at his residence.

On the porch, the shouting continued. The victim was yelling that he was not afraid of McCuiston; McCuiston was yelling for someone to call the police. McCuiston said he shot the victim as the victim made a gesture to enter McCuiston's house. The victim's outer jacket was found in McCuiston's front lawn.

A passerby witnessed the confrontation and testified at trial that (a) McCuiston was standing inside his doorway, holding the screen door open, and hollering for someone to call the police; (b) the victim approached McCuiston, touched McCuiston's shoulder, and retreated; (c) McCuiston raised his shotgun, but did not fire, and shouted for someone to call the police; (d) the victim continued to yell and gesture at McCuiston; and (e) as the victim again moved towards McCuiston in the doorway, McCuiston fired his shotgun.

McCuiston requested a modified self-defense instruction, which included language from both the statute and the pattern jury instruction authorizing deadly force to prevent the commission of a felony in a defendant's home. The trial court denied McCuiston's request, and gave a self-defense instruction excluding this "defense of dwelling" language. The jury acquitted McCuiston of second degree intentional murder, but found him guilty of second degree felony murder. The trial court sentenced McCuiston to an executed term of 180 months, an upward departure of 30 months from the presumptive sentence. The court cited the victim's vulnerability due to intoxication as an aggravating factor supporting the departure.

ISSUES

I. Did the trial court err in instructing the jury on the law of self-defense?

II. Did the trial court's instruction have a significant impact on the verdict?

ANALYSIS

Defendants are entitled to an instruction on their theory of the case if there is evidence to support that theory. State v. Ruud, 259 N.W.2d 567, 578 (Minn.1977), cert. denied, 435 U.S. 996, 98 S.Ct. 1648, 56 L.Ed.2d 85 (1978). A refusal to give a requested jury instruction lies within the discretion of the trial court. State v. Daniels, 361 N.W.2d 819, 831 (Minn.1985). An instruction need be given only if it is warranted by the facts and the relevant law. Id.; State v. Sanford, 450 N.W.2d 580, 586 (Minn.App.), pet. for rev. granted (Minn. Feb. 28, 1990), order granting rev. vacated, (Minn. Mar. 22, 1990). A trial court may tailor a proposed instruction to fit the facts and interpret criminal statutes in light of the common law. See State v. Soto, 378 N.W.2d 625, 627 (Minn.1985) (common law rules of construction may be used to aid in construing penal statutes); State v. Angulo, 471 N.W.2d 570, 574 (Minn.App.) (self-defense instruction may be tailored to fit facts), pet. for rev. denied (Minn. Aug. 2, 1991). But a court should not alter a statutory defense merely because alternative language has appeared in judicial decisions. See State v. Jolley, 508 N.W.2d 770, 772 (Minn.1993) (rejecting expansion of statutory standard for mental illness defense).

I.

McCuiston requested a jury instruction that combined the "defense of dwelling" language from the statute and pattern jury instruction with the conditions for self-defense set out in State v. Boyce, 284 Minn. 242, 254, 170 N.W.2d 104, 112 (1969). See Minn.Stat. Sec. 609.065 (1992) (statute); 10 Minnesota Practice, CRIMJIG 7.05 (1990) (jury instructions). The trial court rejected McCuiston's requested instruction and concluded the statutory language was superfluous in light of Boyce. We disagree.

Minn.Stat. Sec. 609.065 provides:

The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor's place of abode.

(Emphasis added.) The pattern jury instruction similarly provides that self-defense includes "preventing the commission of the felony of [blank] in defendant's place of abode." 10 Minnesota Practice, CRIMJIG 7.05 (1990).

The supreme court said in Boyce that at least three conditions must occur to excuse homicide:

(1) The killing must have been done in the belief that it was necessary to avert death or great bodily harm.

(2) The judgment of the defendant as to the gravity of the peril to which he was exposed must have been reasonable under the circumstances.

(3) The defendant's election to kill must have been such as a reasonable man would have made in light of the danger to be apprehended.

Boyce, 284 Minn. at 254, 170 N.W.2d at 112. But there is no indication that the supreme court was attempting a comprehensive definition of self-defense. See id. ("At least three conditions must concur."). Neither the duty to retreat nor the absence of provocation are explicitly included in the Boyce conditions. Further, Boyce was not standing in his doorway and the shooting took place a distance from his apartment building. Id. at 248-52, 170 N.W.2d at 109-11. Under these circumstances, the Boyce holding does not eliminate from the law of self-defense the use of force in preventing the commission of a felony in the defendant's home.

The gravamen of McCuiston's defense was that the victim was about to force his way into McCuiston's house, not that the victim was necessarily about to inflict death or great bodily harm on McCuiston. McCuiston testified as follows concerning his perceptions at the time he fired the fatal shot:

A. Then Mr. Fontaine [the victim]--I said--I told him--I tried to bluff him, I said, 'The police on their way, man. You better go home.' He said, 'F--- the police and f--- you black m-----f-----s and get the f--- out of my way.' And, when he said that, he came at me with both hands.

Q. Did you feel threatened at this point?

A. Yes, sir.

Q. Okay. Exactly how did you feel when you saw Mr. Fontaine coming at you?

A. I had a decision to make. I wasn't about to be no statistic or my child's life wasn't going to be put in danger. I had a decision to make. Either let him in my house for coffee and doughnuts or keep him from coming in.

The eyewitness' testimony placed the victim on McCuiston's porch during the confrontation which lead to the shooting. There was thus evidence to support the requested instruction and "defense of dwelling" was not already contained in the court's instructions. See State v. Blasus, 445 N.W.2d 535, 542 (Minn.1989) (party is entitled to instruction on its theory of the case if there is evidence to support it and its substance is not already contained in court's instructions).

The trial court concluded that permitting deadly force to protect the commission of a felony in one's home would establish a "lower standard" for self-defense than set forth in Boyce. But the trial court's deletion of statutory language cannot be justified in light of common law principles because there is a "defense of habitation" at common law. See State v. Miller, 267 N.C. 409, 148 S.E.2d 279, 281 (1966) (a person may take the life of another who attempts to force an entrance into the person's house to commit a felony or inflict serious personal injury); 1 Wayne R. LaFave...