State v. Moore, C7-89-1156

• Decision Date: 06 July 1990
• Docket Number: No. C7-89-1156,C7-89-1156
• Citation: 458 N.W.2d 90
• Parties: STATE of Minnesota, Respondent, v. Eugene Dennis MOORE, Appellant.
• Court: Minnesota Supreme Court

Page 90

458 N.W.2d 90

9 A.L.R.5th 1058

STATE of Minnesota, Respondent, v. Eugene Dennis MOORE, Appellant.

No. C7-89-1156.

Supreme Court of Minnesota.

July 6, 1990.

Syllabus by the Court

1. The jury returned legally inconsistent verdicts in finding defendant guilty of first degree premeditated murder and second degree manslaughter.

2. Defendant was denied a fair trial and effective assistance of counsel entitling him to a new trial when his attorney conceded, without defendant's permission, that defendant was guilty of heat-of-passion manslaughter.

3. The trial court did not err in admitting evidence based on the blood splatter analysis.

John Stuart, State Public Defender, Steve P. Russett, Asst. State Public Defender, St. Paul, for appellant.

Stephen Rathke, Crow Wing County Atty., Brainerd, and Hubert H. Humphrey, III, State Atty. Gen., St. Paul, for respondent.

Heard, considered and decided by the court en banc.

OPINION

WAHL, Justice.

Defendant Eugene Dennis Moore was found guilty, after a jury trial, of premeditated murder in the first degree, ¹ unintentional murder in the second degree ² and second degree (culpable negligence) manslaughter, ³ in the November 12, 1988 shooting death of his wife, Debra Moore. He was sentenced to life imprisonment on the first degree murder conviction. Defendant argues on appeal: that he is entitled to a new trial or conviction for a lesser offense because the jury's verdicts of guilty for first degree premeditated murder and second degree manslaughter are legally inconsistent; that he was denied a fair trial and effective assistance of counsel when his attorney conceded his guilt in closing argument; and that the admission of expert testimony on blood splatter interpretation constituted reversible error because the state failed to qualify the testimony as expert testimony, failed to establish that the results of blood splatter analysis are generally accepted in the scientific community and failed to demonstrate that the results in this case were reliable. ⁴ We reverse and remand for a new trial.

In November 1988, Eugene Moore and Debra Moore had lived a short time in a small house in Brainerd, Minnesota, with five of their eight children. Their three eldest children had been removed from their home a few years earlier while they were living in Oklahoma. Neither of the Moores had held a job since 1980. Between 1:00 p.m. and 10 p.m. on November 11, 1988, the Moores drank two twelve-packs of beer. At approximately 7:00 p.m., Debra Moore put the children to bed. Later she and her husband had an argument. Sometime between 9:00 p.m. and 10:00 p.m., a gun discharged, striking Debra Moore in the chest. She died nearly instantaneously.

Later that night, at 11:07 p.m., the 911 operator in Brainerd received a telephone call from Moore. Moore told the operator that he had shot his wife with a 12 gauge sawed-off shotgun. The telephone call was recorded and traced to John's Tavern in Brainerd. Moore told the dispatcher that he and his wife had gotten into an argument, that she had been threatening to leave him and had threatened to kill him. Police were immediately sent to John's Tavern, but were unable to get inside the bar because of delays caused by a drunken patron. Moore and the patron were having an argument. Moore threw a crockpot behind the bar and also threatened suicide. Approximately 45 minutes after he entered the bar, Moore was arrested.

Moore had given the 911 dispatcher his address and told her where to find his wife's body. The police immediately went over to 1417 Norwood Street. The house was locked and dark. Forcing open two double-sliding doors, the police entered the house through the kitchen where they found Debra Moore dead, her body wrapped in a naugahyde tarp. The police searched the rest of the house and found an infant in a bedroom. Approximately 20 minutes later they found the four other children in a second bedroom, with the door locked from the outside. The police found a 12 gauge sawed-off shotgun on a shelf in the living room. They also found a spent shell and a box of cartridges. Twenty-four empty beer cans were on the kitchen counter. The bathtub was filled with bloodstained toys, the sink with bloody water and a towel. The living room had numerous bloodstains on the wall and floor, although a large portion of the living room floor had been wiped clean.

The police discovered, after arresting defendant, that he had a small cut in between his thumb and forefinger. Defendant eventually admitted that this cut was from the shotgun recoil. Defendant gave three voluntary statements to the police at different times. In each statement defendant admitted shooting his wife, but said it happened when he tried to take the gun away from her. He insisted that it was an accident without premeditation and intent. His three statements differed as to whether he or his wife pulled the trigger.

Defendant testified at trial that, on the day of the shooting, he and his wife began drinking beer early in the afternoon. They drank approximately two 12-packs of beer. After supper they put the children to bed, then began drinking more. A few minutes after 9:00 p.m., defendant and his wife started arguing. His wife brought up accusations that he had sexually abused their three other children while living in Oklahoma. Defendant said that he usually kept the shotgun on the shelf in the living room or underneath the bed, but that he had brought it out earlier because he had seen his relatives driving around his house. He also had loaded the gun at that time. He said he had sawed off the barrel so that his wife could not sell the gun for beer money. While defendant and his wife were arguing, she got up and picked the gun off the shelf, saying she would kill him. Defendant got up off the couch, threw his beer on the floor, and tried to take the gun away from her. Defendant said that when his wife picked up the gun it was pointed towards him. Somehow, defendant testified, the gun was turned around and pointed towards his wife. Defendant said that his wife's left hand was on the barrel and her right finger was on the trigger. Defendant said that when the gun was turned around to face his wife, the barrel was about two feet from her chest. He also said she had somehow pulled back the hammer. Defendant told the jury that the gun discharged accidentally when he and his wife were struggling over it. Defendant said his wife remained standing after the gun blast and said she was sorry.

Defendant said he tried to hide his wife's body after the shooting so that his children would not see it. He locked the children in their room and tried to clean up the house for the same reason. Defendant said his wife was killed at approximately 9:45 p.m., and that it took him 45 minutes to an hour to clean up before he went to John's Tavern to call the police. He said he put the gun underneath the mattress on the bed. Defendant stated that he thought for "maybe a minute" of getting rid of the body, but discarded the idea because he felt his wife deserved a better burial than that. Defendant said that he had a cut on his hand because his hand was covering his wife's hand when she accidentally pulled the trigger.

The state, at trial, called defendant's seven-year-old daughter, Karen Moore, who testified that on the night of her mother's death she was in bed and heard her mother and father arguing in the living room. She said that her parents had been drinking beer. She could not hear what they were saying, only that their voices were raised. At one point, however, she heard her father say "Debra, that's it, Debra, you are dead." Just after she heard these words, a gun exploded. A few minutes later she said that her father came into the room, hugged her sister Connie and told her he was sorry. Nine-year-old Connie Moore testified that after her father left, she peeked into the living room through a crack in the bedroom door and saw blood on the couch and on the floor.

Dr. Rottschafer, a pathologist, conducted an autopsy on Debra Moore. He discovered superficial bruises around Debra Moore's eye which occurred sometime close to the time of her death. There was a four inch by eight inch wound in her chest. Shotgun pellets and wadding were removed from the wound. There was no shotgun residue on her hands. Rottschafer testified that in his opinion the entry of the bullet was from left to right. The projectile entered at a 45 degree angle through the middle of the upper side of her chest. Rottschafer testified that "Death would have been very, very instantaneous" because nearly every major organ in Debra Moore's body had been destroyed by the blast, but he admitted on cross-examination that it was possible that she could have lived for up to two minutes after the blast. Debra Moore had a blood alcohol content of 0.22% at the time of her death.

A firearms expert testified that the shotgun found at defendant's home was "consistent with" the shotgun which caused the death of Debra Moore. He testified that the shotgun used to kill Debra Moore had a normal trigger weight. The expert estimated that the distance of the muzzle from Debra Moore's chest when the gun discharged was from two to six feet. Defendant's blood was found on the barrel of the shotgun.

Gary L. Kaldun, a blood splatter interpretation expert, testified as to an analysis he conducted of the blood splatters in the Moore home. From the blood splatter pattern, Kaldun concluded that Debra Moore was either facing the dresser in the living room or at an angle to it and that her chest was approximately 24 inches from the floor at the time she was shot. In his opinion, Debra Moore was sitting or crouching on the floor at the time she was shot but could not have been standing. He did admit, however, that it was possible that she was on her way to sitting down on the floor at the time she was shot.

Defendant's attorney, seeking to respond to...