State v. Palubicki, No. A04-1318.

• Decision Date: 28 July 2005
• Docket Number: No. A04-1318.
• Citation: State v. Palubicki, 700 N.W.2d 476 (Minn. 2005)
• Parties: STATE of Minnesota, Respondent, v. Anthony John PALUBICKI, Appellant.
• Court: Minnesota Supreme Court

700 N.W.2d 476

STATE of Minnesota, Respondent, v. Anthony John PALUBICKI, Appellant.

No. A04-1318.

Supreme Court of Minnesota.

July 28, 2005.

John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, Office of the State Public Defender, Minneapolis, MN, for Appellant.

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, St. Paul, MN, Gregory D. Larson, Hubbard County Attorney, Hubbard County Courthouse, Park Rapids, MN, for Respondent.

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

OPINION

PAGE, Justice.

Appellant Anthony John Palubicki was indicted by a Hubbard County grand jury for one count of first-degree premeditated murder in violation of Minn.Stat. § 609.185(a)(1) (2004) and two counts of first-degree felony murder in violation of Minn.Stat. § 609.185(a)(3) (2004) in connection with the January 25, 2003, death of Lorentz Olson. After a jury trial, Palubicki was convicted as charged and sentenced to life in prison for each of the three judgments of conviction. He also was ordered to pay a $200 public defender co-payment.

In this appeal, Palubicki argues that: (1) the trial court committed reversible error by admitting testimony about his conduct and statements on the night of the murder as observed and heard by his former wife without first determining whether evidence of the conduct and statements was protected by the marital privilege; (2) the trial court violated his constitutional right to present a defense by excluding "alternative perpetrator evidence" allegedly involving his former wife; (3) the trial court committed reversible error by refusing to instruct the jury that his former wife was an accomplice; (4) the trial court denied him a fair trial when it erroneously admitted character evidence; (5) prosecutorial misconduct during discovery and the trial denied him a fair trial; (6) the trial court erred by entering separate adjudications and sentences for each of his first-degree murder convictions; and (7) the trial court erred by ordering him to make a $200 public defender co-payment without a finding of his ability to pay. We affirm the convictions and remand for re-adjudication of the convictions and sentencing.

On January 25, 2003, 90-year-old Lorentz Olson was found dead in his Park Rapids, Minnesota, home by his son, Kim Olson. When police officers arrived, they found Lorentz Olson lying in bed, covered with a blanket, and with a pillow over his head, and blood spatter on the bedroom walls and ceiling. There was no evidence of forced entry into the home and nothing seemed to be missing. A neighbor had seen Olson alive at 7:30 p.m. the night before the day he was found dead, and another neighbor was awakened by a noisy car late that night. An autopsy determined that Olson died from multiple blunt-force trauma to his head.

After an initial investigation, the police had no suspects. At some point in May 2003, Joy Cantrell, the wife of appellant Anthony Palubicki, told her father that on the night of Olson's murder Palubicki had come home with blood on his clothes, was angry, stated that things had not gone well, and then washed his bloody clothes. Cantrell's father, a former police officer, advised Cantrell to tell the police what had happened, which she did on May 13, 2003. Based on the discussions with Cantrell, the Olson murder investigation began to focus on Palubicki and his friend, Scott Fix. Fix, when interviewed by the police, initially denied involvement in Olson's murder and provided the police with an alibi. When challenged, Fix admitted being involved in the murder and implicated Palubicki. Fix indicated that Palubicki had planned to rob Olson and take Olson's car and that he had accompanied Palubicki as a lookout. Palubicki and Fix evidently wanted to use Olson's car for a different robbery. According to Fix, they drove to Olson's house in Fix's truck, which had a loud muffler, and parked about 300 feet away behind St. Joseph's Hospital. They walked from the truck to Olson's garage and entered the garage from a back door that was partially ajar. Fix remained in the garage as a lookout while Palubicki went inside the house. From his vantage point in the garage, Fix could see Palubicki roaming around parts of the house. Fix said that he heard what he variously described as "thud sounds," "twigs breaking," and "bones crunching." When Palubicki returned to the garage, he handed Fix a hammer, which was slippery and difficult to hold. Palubicki then reentered the house. After a while, Fix heard "gargling sounds."

Fix testified that when he and Palubicki eventually left Olson's house, they returned to Fix's truck and, following Palubicki's directions, Fix drove to a bridge over the Potato River where Palubicki disposed of the hammer. Fix directed the police to the bridge, but no hammer was found. Fix also led the police to a fire pit near his father's house where, according to Fix, he and Palubicki burned clothes they had worn on the night of the murder. Although he originally told the police that Palubicki was wearing "Carhartt" overalls that night, at trial he testified that the overalls might be "Dickie" and not "Carhartt." Fix also wore Carhartt overalls the night of the murder. In the fire pit, the police found debris, including pieces of burned fabric, snaps, zippers, buckles, steel toes from shoes or boots, and buttons, some of which were Carhartt buttons. Fix eventually pled guilty to second-degree intentional murder and testified for the state at Palubicki's trial. Except as noted, Fix's trial testimony was consistent with his statement to the police.

Cantrell also testified at Palubicki's trial. She did so over Palubicki's assertion of the marital privilege. According to Cantrell's testimony, one month before the murder, Palubicki gave Olson a ride home to get a spare set of car keys after Olson had locked himself out of his car outside a bar and, about a week before Olson's murder, she had overheard Palubicki and Fix talking about stealing a car from an "old man." She understood the "old man" to be Olson. On the night of the murder, Palubicki and Fix, who had been out drinking earlier that evening, continued drinking at Palubicki's house in Cantrell's presence. Cantrell heard them planning to rob Olson, but took no action to stop the robbery. When Palubicki and Fix left the house, Palubicki was wearing jeans and tennis shoes and carrying his Carhartt overalls. Sometime after she went to sleep, Cantrell was awakened by Palubicki's return home. According to Cantrell, she heard the front door slam and Palubicki pounding down the hallway toward the bedroom screaming "something about things getting fucked up." When he entered the bedroom and turned on the light, Cantrell saw blood-like spatters on Palubicki's face, wrists, and shoes. She also saw him take off his clothes and take them to the room where their washing machine was, and then she heard the washing machine's lid close and the machine being turned on. The next day, she learned of Olson's murder. When Fix came to their house later that day, Cantrell overheard Fix say that he had driven by the hospital to see what was happening at Olson's house. Cantrell testified that Palubicki responded by calling Fix an "idiot" and "yelled at him for going back to the scene of the crime." She also heard Palubicki say that he "did what he had to do" and "the old man deserved it anyway." In addition, she heard Palubicki and Fix talk about burning clothes, which Fix agreed to do. Four or five days later, Cantrell heard Palubicki telling Fix that he was an "idiot" for not getting rid of the clothes as he had been told to do. Palubicki then said that he would burn the clothes himself and, according to Cantrell, she never again saw the tennis shoes that Palubicki wore or the Carhartt overalls that he carried the night of the murder. Although Fix testified that Cantrell was with Palubicki and Fix when they burned the clothes, Cantrell denied being present. She also denied asking Palubicki whether he got any money, which conflicted with Fix's testimony. Finally, although she testified that she did not go to the police sooner because she was afraid, Cantrell admitted that before trial she had asked about a reward offered in connection with Olson's murder.

Two forensic scientists testified at trial that the position of Olson's body suggested that Olson had been lying down when he was killed and that the absence of blood spatter on a wall suggested that the killer had been standing between the wall and the bed at the time of the murder. The medical examiner who performed the autopsy testified that a hammer, similar to one that Fix described Palubicki as having at Olson's house, matched Olson's head wounds "fairly well." The medical examiner further testified that Olson most likely was struck by somebody using his right hand. Palubicki is right-handed, while Fix is left-handed. Palubicki did not testify at trial. The only defense witness was a police investigator who testified that a search of Palubicki's house produced nothing of evidentiary value.

Over defense objection, the trial court excluded evidence related to a robbery at Petro Pete's, a gas station and convenience store where Cantrell worked, which occurred two days after Olson's murder while Cantrell was on duty, as well as a statement by Fix's brother that Fix had threatened to start killing people sometime during the week after Olson's murder. The trial court also denied Palubicki's request for an accomplice jury instruction with respect to Cantrell.

The jury found Palubicki guilty of one count of first-degree premeditated murder and two counts of first-degree felony murder. The trial court entered separate adjudications and life sentences for all three counts of first-degree murder. This appeal followed. For the reasons discussed below, we affirm Palubicki's convictions and remand to the trial court for...