State v. Moore
| Citation | 481 N.W.2d 355 |
| Decision Date | 06 March 1992 |
| Docket Number | No. C0-90-2137,C0-90-2137 |
| Parties | STATE of Minnesota, Respondent, v. Eugene Dennis MOORE, Appellant. |
| Court | Supreme Court of Minnesota (US) |
Syllabus by the Court
1. Legally inconsistent guilty verdicts require reversal and, where the remand for a new trial is without express instructions, the defendant may be retried on all charges.
2. The evidence establishes beyond a reasonable doubt that the defendant caused his wife's death with intent and premeditation.
3. Under the facts and circumstances of this case, the defendant has not been deprived of his Sixth Amendment right to counsel.
4. The trial court did not abuse its discretion in denying the defendant's motion for a change of venue.
John M. Stuart, State Public Defender, Steven P. Russett, Asst. State Public Defender, St. Paul, for appellant.
Hubert H. Humphrey, III, Atty. Gen., Paul R. Kempainen, Asst. Atty. Gen., Sara Klise, Law Clerk, St. Paul, and Stephen Rathke, Crow Wing County Atty., Brainerd, for respondent.
Heard, considered, and decided by the court en banc.
Defendant Eugene Dennis Moore appeals his second conviction of first degree premeditated murder, 1 for the shooting death of his wife, Debra Moore. As grounds for appeal, defendant challenges his retrial on charges other than second degree negligent manslaughter; the sufficiency of the evidence with regard to premeditated murder; the reappointment, without his express, on-the-record consent, of the same counsel found to have provided ineffective assistance at his first trial; and the refusal of the trial court to grant a requested change of venue. For the reasons set out below, we affirm the conviction.
Moore was previously tried in 1989 by a Crow Wing County jury in connection with his wife's death and convicted of first degree murder, unintentional second degree murder, and second degree culpable negligence manslaughter. He was sentenced to life imprisonment on the first degree murder conviction. This court reversed the conviction and remanded for a new trial. State v. Moore, 458 N.W.2d 90, 98 (Minn.1990) (Moore I ).
We held in Moore I that the jury returned legally inconsistent verdicts in that first degree murder and second degree manslaughter require mutually exclusive state of mind elements; that defendant was denied effective assistance of counsel entitling him to a new trial when his attorney conceded during closing argument, without defendant's permission, that defendant was guilty of heat-of-passion manslaughter; and that the trial court did not err in admitting evidence based on the blood splatter analysis. Id. at 94, 96, 98.
On remand the case was tried before the same judge with the same court-appointed attorney representing the defendant. Defense counsel moved that defendant be retried only for second degree manslaughter pursuant to the decision in Moore I. The court denied this motion as well as defendant's motion for a change of venue. Defendant was convicted by jury verdict of first degree murder. This appeal followed.
The evidence at both trials told essentially the same story. Debra Moore was killed by a single blast of a shotgun to her chest at approximately 9:30 p.m. on November 12, 1988. She died from a loss of blood almost instantaneously after being shot. Defendant admitted shooting his wife, but testified that the shooting was accidental. He maintained that the shooting occurred during a struggle when he tried to take the shotgun from his wife who, he said, had picked it up and pointed it at him.
Evidence of the events preceding the shooting was supplied by defendant's statements to police and his trial testimony. Defendant testified that, earlier in the day of the death, he saw some of his relatives driving around the house where he lived with his wife and five of their children in Brainerd. Fearing that the relatives intended to harm him, he took a sawed-off shotgun from its storage place under his bed, loaded it, and placed it on a shelf in the living room. Defendant said he called the Brainerd Police Department at about 4:00 in the afternoon to report that his relatives were circling the house.
Defendant also testified that earlier in the day he had overheard his wife plotting with Richard Engisch, the owner of the house, to kill him. 2 Engisch testified that he did not visit the Moores' house on the day of the killing and denied plotting defendant's death with Debra Moore. Both defendant and his wife had been drinking beer for much of the day. Defendant testified that he had drunk about ten cans of beer. Debra Moore's blood alcohol content was .22% after her death.
According to defendant, after the children were in bed on the night of November 12, his wife began to argue with him. He said he initially tried to ignore her which only made her more angry. Defendant testified that, during the argument, Debra took the shotgun from the shelf in the living room, pointed it at him and said she was going to kill him. According to defendant, she had threatened him with the shotgun on two other occasions in the last year. Defendant testified that he jumped up and tried to take the shotgun away from Debra and, in the ensuing struggle, the gun went off, shooting her in the chest. He insisted that Debra was standing upright when she was shot. According to defendant, Debra said she was sorry and walked into the kitchen and back into the living room before collapsing and hitting her head on the dresser.
Defendant drove a screw into the doorframe of the children's bedroom so they could not come out and see their mother's body and the blood which was spattered around the living room. Defendant then tried to clean up the blood and attempted to dispose of the body. He wrapped the body in a plastic bedspread and managed to drag it to the kitchen where police found it when they arrived later that night. Defendant said he considered stealing a car to use to dispose of the body, but could not find one to steal. He then decided to call the police.
Defendant walked to John's Bar in Brainerd at about 11:00 p.m. He ordered a beer and used the change to call police from the public telephone in the rear of the bar. He told the 911 dispatcher that he had just killed his wife and that he wanted the police to come for him. He said he had a .22 caliber handgun with him and that he would "come out shooting" when police arrived and that he would not be taken alive. The dispatcher testified that defendant sounded incoherent and irrational at times and sounded as if he were crying at several points in the conversation. The dispatcher did not remember defendant using the word "accident" to describe his wife's shooting, and the transcript of the conversation does not reveal his characterizing the death as an accident, though there are parts of the transcript that are marked "inaudible." The bar was eventually evacuated. The police rushed the bar and arrested defendant who was unarmed and offered no resistance.
The police took defendant to the Brainerd Police Department and questioned him two times, once immediately after the arrest and again the following afternoon. During the first questioning, Moore's speech rambled and wandered and sounded incoherent and nonsensical at times. He mentioned, among other things, flying "sauce pans," Presidents Bush and Reagan, and the planets Pluto and Uranus as somehow relevant to his conduct. Defendant did not wander during the questioning the next day, however. Though his statements were inconsistent in some details, defendant consistently claimed the shooting was accidental and denied any intent or plan to kill his wife.
The state sought to prove first degree murder by expert testimony and circumstantial evidence. Expert testimony established three facts which tend to prove that the shooting was not accidental. First, Bureau of Criminal Apprehension (B.C.A.) firearm expert Roger Papke analyzed tests conducted with defendant's sawed-off shotgun and concluded that the muzzle of the gun was between two and six feet away from Debra Moore's chest when it was fired, not as close as it presumably would have been in a hand-to-hand struggle over the gun. No gunshot residue was visible on Debra's blouse, also suggesting that the shot was not fired close up. Chemical tests for the presence of residue were not performed, however. Second, the state's expert forensic scientist, Gary Kaldun, testified, on the basis of his analysis and interpretation of blood splatters at the scene, that Debra Moore's chest was about 24 inches above the floor when she was shot and that she could not have been standing upright as defendant testified. Third, the hammer of the shotgun had to be manually cocked and the trigger pulled before it could be fired, which would make an accidental firing unlikely. Furthermore, defendant had two injuries that would be consistent with his holding the gun and firing it in a conventional manner. He had a cut on the web of skin between his thumb and first finger, an injury, according to the state's expert, commonly caused by the gun's recoil. In addition, defendant had a bruise on his thumb where the gun's hammer would have hit him as it fired.
The state's medical expert also testified that Debra Moore died almost immediately after being shot and could not have walked and talked with defendant before collapsing as he testified she did. In addition, Karen Moore, defendant's daughter, 7 years old at the time of the shooting, testified that she heard her parents arguing after she went to bed and that she heard her father say "Good-bye Debra, I'm going to kill you" before she heard a "big bang." At Moore's first trial, Karen testified her father said, "Debra, that's it, you are dead," before the shot occurred. The jury at the second trial heard the reading of Karen's testimony from the first trial as well as her live testimony.
The court, as agreed to by prosecution and defense, instructed the jury on...
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