State v. Pero

• Decision Date: 11 March 1999
• Docket Number: No. C0-98-681,C0-98-681
• Parties: STATE of Minnesota, Respondent, v. Michael Elwin PERO, Appellant.
• Court: Minnesota Supreme Court

Page 319

590 N.W.2d 319

STATE of Minnesota, Respondent, v. Michael Elwin PERO, Appellant.

No. C0-98-681.

Supreme Court of Minnesota.

March 11, 1999.

Syllabus by the Court

The trial court did not err in refusing to dismiss a grand jury's indictment for first-degree murder and rejecting the plea agreement for second-degree murder pursuant to Minnesota Rules of Criminal Procedure, 15.04, subd. 3, and 30.01. In addition, the advisory comment to Rule 15.04, subd. 3(1) does not require the recusal of a trial judge following the judge's rejection of a plea agreement. The trial judge did not err in refusing to recuse himself in the present case.

John M. Stuart, Minnesota State Public Defender, Lawrence Hammerling, Deputy State Public Defender, Minneapolis, for appellant.

Alan Mitchell, St. Louis County Attorney, Gary W. Bjorklund, Assistant St. Louis County Attorney, Duluth, for Respondent State of Minnesota.

M. Hatch, Minnesota State Attorney General, Mark B. Levinger, Assistant Attorney General, St. Paul, for Respondent Terry C. Hallenbeck.

Heard, considered, and decided by the court en banc.

OPINION

BLATZ, Chief Justice

Appellant, Michael Elwin Pero, was initially charged by complaint with two counts of second-degree murder (causing death while committing kidnapping or false imprisonment) and one count of attempted first-degree sexual conduct (causing injury and using force or violence to accomplish sexual penetration). The charges arose out of appellant's criminal behavior beginning September 26, 1996, when appellant admittedly kidnapped, imprisoned, sexually assaulted, and eventually killed Michael Dean King. On February 19, 1997, the St. Louis County Grand Jury indicted appellant for first-degree murder (causing death during sexual assault committed with force or violence) and two counts of second-degree murder.

Appellant and the state reached a plea agreement, which was offered to the trial court on March 9, 1998. Under the terms of the plea agreement, appellant was to plead guilty to second-degree felony murder (causing death while committing false imprisonment). In exchange for his plea, appellant would receive a 480 month sentence and the indictment and all other charges would be dismissed. On March 17, 1998, the trial court issued an order denying the dismissal of the first-degree murder indictment and rejecting the plea agreement. The appellant and state then filed a joint motion requesting that the trial judge recuse himself, which the trial judge denied.

Appellant subsequently filed a petition for a writ of mandamus with the court of appeals, ordering the trial court to dismiss the first-degree murder indictment, or in the alternative, a writ of prohibition ordering the trial judge to recuse himself. The state joined appellant's petition, and the trial judge filed a pro se response. On May 13, 1998, the court of appeals denied the writs. We granted appellant's petition for review, which was also joined by the state, and must now determine if the court of appeals erred in denying the writs.

The facts underlying this appeal are not in dispute. Appellant first met the victim, Michael King, at approximately 3:00 a.m. on Thursday, September 26, 1996. Appellant had just left a bar when he saw King waiting at a bus stop on Superior Street in Duluth. Appellant approached King and invited him back to his house and King accepted the invitation. At that time, appellant told King that he was gay. Once they were in appellant's house, appellant and King looked at some "bondage" magazines, and King told appellant that he would like to try bondage "a little bit later." Appellant then offered King a soda pop, which King accepted. King did not know that appellant had put approximately six sleeping pills in the soda pop, in hopes of "knock[ing] [King] out."

Eventually, appellant and King laid down on appellant's bed. While King was still clothed, appellant laid naked next to King, waiting for the drugs to put King to sleep. Once the drugs took effect and King was asleep, appellant took King's clothes off, leaving only King's shirt on his body. Appellant then tied King's hands behind his back with an Ace bandage, wrapped duct tape around King's mouth, and put a black hood over King's head. Appellant's intent at this time was to "keep [King] for awhile," to "make [King] secure so he can't move and then probably put him in the closet * * *." Appellant wanted to "keep [King] for sexual bondage pleasures." Appellant also planned on "brainwashing" King by playing tape recordings at the same time he deprived King of food and water. Appellant believed that it would take four to six months to make King "submissive * * * * for sexual purposes," and appellant was willing to keep King captive for that period of time.

After appellant duct taped King's mouth, King awoke and attempted to remove the tape, saying that he could not breathe. Appellant got behind King and put a black leather dog collar on King to keep King quiet. King began to struggle, and appellant admits that at this point he was aware that King was not consenting to the situation. Undeterred, appellant duct taped King's ankles and hit him on the head several times with a broomstick "to knock him out." In addition to rendering King unconscious, the blows from the broomstick caused King's head to bleed.

When King awoke, he began to struggle, and banged his head against a wall and window, breaking the window and again causing his head to bleed. Appellant covered King's nose and mouth with his hands, attempting to "knock him out through suffocation." Appellant was successful and King again lost consciousness. Appellant then checked King for a pulse and listened to his heartbeat with a stethoscope. When appellant determined that King was still alive, he duct taped King's head to stop the bleeding. Appellant then put him in a closet and hog-tied King.

Shortly thereafter, appellant left for work. He was at work from 10:00 p.m. on Thursday until 6:00 a.m. Friday. Appellant did not check on King until approximately 2:30 p.m. Friday afternoon. Upon opening the closet, appellant found that King was "cold" and "discolored." Using a stethoscope, appellant concluded that King was dead.

After discovering that King was dead, appellant cut off King's hair "to help in decomposition," tied a sock around his mouth, tied some ropes around him, and put him in a cardboard box. Appellant purchased a two-wheeled dolly from K-Mart that he used to load the deceased, boxed and bound, into his car. Appellant left the box holding King in the backseat of his car for two days. Eventually, appellant drove his car to his father's farm in Lakewood Township, St. Louis County. It was there that appellant partially buried the box, along with some of King's possessions. Appellant kept King's driver's license because he wanted a picture of King.

Eventually, appellant's father discovered the partially buried box on his property and reported his discovery to the local police. On December 1, 1996, the police first spoke to appellant. Appellant denied any knowledge of the body that was found on his father's property. However, when the police obtained a search warrant and again interviewed appellant on December 13, 1996, appellant gave the police a lengthy statement describing his actions that led to King's death. Appellant was then indicted on February 19, 1997, by a St. Louis County Grand Jury for first-degree murder, Minn.Stat. § 609.185(2) (1998), and two counts of second-degree murder, Minn.Stat. § 609.19, subd. 2(1) (1998).

On March 9, 1998, appellant pleaded guilty to one count of second-degree murder and agreed to a 480 month sentence, the statutory maximum. In return for his guilty plea, the state agreed to dismiss the other charges, including first-degree murder. After the parties presented the plea agreement to the court, the court requested that the parties present the specific reasons why the plea agreement was in the public interest.

The state first responded by informing the court that the agreement had been reached after numerous discussions between the parties and noted that the agreement had been discussed with the law enforcement agencies involved in the case as well as the victim's family. The state indicated to the court that the law enforcement agencies approved of the plea agreement, but that the victim's family wanted appellant to "face the maximum penalty provided by law." The state then told the court that the agreement was in the public interest because of the ever present risk of the appellant being acquitted of first-degree murder.

When the court asked what specific elements of the state's case were causing concern, the state responded that it would have difficulty establishing the exact time and cause of death. The state was concerned that this would make it difficult to prove that appellant caused King's death while committing or attempting to commit criminal sexual conduct with force or violence, a required element of the first-degree murder charge.

The state then admitted that appellant had already expressed a willingness to "accept responsibility" for the two counts of second-degree murder, either at the present hearing or at trial. Further, the state pointed out that the plea agreement provided for a significant upward departure from the sentencing guidelines for second-degree murder. Appellant was willing to agree to a sentence of 40 years, an upward departure from the presumptive sentence that the state acknowledged was a "rare occurrence."

On March 17, 1998, the trial court issued an order denying the dismissal of the first-degree murder indictment and rejecting the plea agreement. In its accompanying memorandum, the trial court stressed that the state had failed to provide a reasonable factual basis to warrant dismissal of the grand jury's indictment. While the court recognized the prosecutor's discretion, it also expressed concern for the...