State v. Persitz, C3-93-1840

• Decision Date: 30 June 1994
• Docket Number: No. C3-93-1840,C3-93-1840
• Citation: 518 N.W.2d 843
• Parties: STATE of Minnesota, Respondent, v. Zachary NMN PERSITZ, Appellant.
• Court: Minnesota Supreme Court

Page 843

518 N.W.2d 843

STATE of Minnesota, Respondent, v. Zachary NMN PERSITZ, Appellant.

No. C3-93-1840.

Supreme Court of Minnesota.

June 30, 1994.

Syllabus by the Court

1. The trial court's ruling excluding psychiatric opinion testimony from guilt phase of bifurcated criminal trial was not error where appellant did not show that he fit within any exception to the general rule that psychiatric opinion testimony is excluded from the guilt phase.

2. The trial court properly refused to give appellant's requested jury instruction on his "theory of the case" where the requested instruction would have injected argument into the court's charge and the court did instruct the jury on the elements of the crime to which defendant admitted.

3. The trial court properly refused to instruct the jury as to the type of evidence it may consider to determine whether defendant proved by a preponderance of the evidence that he was mentally ill at the time of his offense. Trial court properly gave CRIMJIG 6.02 on the defense of mental illness and is not required to instruct the jury that it may consider appellant's cognition 4. The evidence was sufficient to support appellant's conviction of first degree premeditated murder.

volition and capacity to control his behavior at the time of his offense.

John M. Stuart, State Public Defender, Susan K. Maki, Asst. State Public Defender, Minneapolis, for appellant.

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

Heard, considered and decided by the court en banc.

OPINION

GARDEBRING, Justice.

Following a jury trial, appellant Zachary Persitz was convicted of one count of first degree premeditated murder in violation of Minn.Stat. Sec. 609.185(1) in connection with death of Michael Prozumenshikov on January 28, 1991. Appellant asserted a defense of "not guilty by reason of mental illness," and his trial was bifurcated pursuant to Minn.R.Crim.P. 20.02, subd. 6(2). After the second phase of the bifurcated trial, the jury rejected his defense of not guilty by reason of mental illness. Appellant was sentenced to life in prison and now appeals from the judgment of conviction.

The murder in this case arises from a breakdown in the financial relationship between the defendant and his victim. Both were Russian immigrants to the United States and were family friends. Persitz admitted to killing Prozumenshikov, but asserted that he did so in the heat of passion because the victim had for years mismanaged money appellant invested with Prozumenshikov and also because of a provocative statement Prozumenshikov made in the midst of a confrontation over the investments. The state's theory was that Persitz intended to obtain a signed agreement from Prozumenshikov as to the loss of the money and then to murder him, so that Persitz could use the coerced agreement to recover his lost investment from Prozumenshikov's employer.

Appellant testified in his own behalf. He said that he emigrated to the United States in 1977 and was hired three months later by the Minnesota Department of Natural Resources ("DNR") to work as a dam inspector. Prozumenshikov was a dentist, but was unable to obtain a license to practice in the United States. He eventually became a stockbroker. Appellant testified that he met Prozumenshikov several years after he arrived in the United States.

In 1986, appellant's wife received a $100,000 settlement from an accident and appellant testified that, after a great deal of prompting by Prozumenshikov, he decided to invest the money through him. He testified that Prozumenshikov orally promised him that he would invest conservatively and that appellant would receive an 18% return on the investment. Appellant further testified that through mismanagement of the investment Prozumenshikov eventually caused appellant to lose more than $200,000, based on the expected 18% return on his investment. During this same time period, Prozumenshikov's income steadily increased, allowing him to buy a Mercedes and a gold Rolex watch.

Appellant testified that he repeatedly tried to get Prozumenshikov to sign an agreement documenting his promise of an 18% return on appellant's investment beginning in 1988, after he read that other Russian clients of Prozumenshikov were suing him. Prozumenshikov either refused to sign the agreement or promised to mail it and never did.

The ongoing disagreement culminated on the night of the shooting. Appellant testified that he went to Prozumenshikov's workplace at 6:30 p.m. and waved him over as he exited the parking garage. For several hours appellant tried to get Prozumenshikov to sign the agreement, but he refused. He did, however, try to obtain the $200,000 for appellant by calling several friends.

At one point in the evening, appellant forced Prozumenshikov to put on a set of handcuffs, which he had in the trunk of his car, and then loaded a gun which he also had with him. After appellant loaded the gun they began to argue and exchange insults. Prozumenshikov shouted a phrase in Russian that appellant translated as cursing appellant and his family, and appellant testified that he "saw his lips moving and he was close but I couldn't hear what he was saying. * * * I looked around me and I didn't see Michael. I looked down and he was laying on the snow, and I had gun in my right hand, so I couldn't believe it. * * * I was in such a rage for what he made me do, so I pulled him into the car onto the driver's seat, * * * and I shot him a second time."

Appellant testified that he then went to his home and later in the evening moved the body to a park. In the morning he went to the park, put the body in the trunk of his car, and headed east on I-94, eventually turning into a compost site off of Highway 95. He testified he had never been to the site before, and that he didn't see the gate across the entrance and crashed through it. He tried digging a hole, but the ground was frozen. He then decided to separate parts of the body so that Prozumenshikov wouldn't be able to haunt him. He removed the head and hands with a hatchet because he didn't want the body to be identified. He covered himself with a protective coverall suit that he testified he got from his garage that night. When he left the compost site, he drove toward Taylor's Falls and, while driving over a bridge there, threw Prozumenshikov's watch toward the river, and threw the bag with his head and hands into the river. He also threw the hatchet and the plastic bags out of the car on the way back to St. Paul. The bloody hatchet was later found by the roadside.

After arriving back in St. Paul, appellant went to work and then to a car wash close to his workplace. He threw the plastic bags from the trunk and the protective suit into the garbage there. He insisted that the car wash employees clean the blood out of his trunk, telling them that it came from a deer. He then went to work and called his wife, inviting her to have lunch and asking her to bring his gym bag with her. He met her at the YMCA and changed clothes. The next day he returned the borrowed gun to his friend.

The state introduced physical evidence that contradicted appellant's description of how the killing occurred and circumstantial evidence supporting its theory of the case, that appellant had intentionally killed Prozumenshikov as part of a scheme to recover the value of his lost investments. In particular, the state theorized that the victim had been shot while he sat in appellant's car. First, the state introduced extensive testimony regarding the equipment used to commit the murder and dispose of the body. Testimony was introduced showing that appellant purchased a pair of handcuffs in December of 1990, that he went to a shooting range at the beginning of January of 1991, and that he borrowed a gun from a friend the day before the killing. He testified that his intent was to use the handcuffs and gun to scare Prozumenshikov into signing the agreement.

There was also testimony with regard to the protective suit worn by appellant after the murder. The state attempted to show that appellant had acquired a protective suit in advance of the confrontation as part of his planning to kill and dismember Prozumenshikov. Appellant's co-workers at the DNR testified that protective suits are only used by employees trained to work at contamination sites and would not ordinarily be needed by a dam inspector, and further that appellant had sought a protective suit on the day of the murder. A detective also testified to having used appellant's keys to gain access to the storeroom at the DNR where such protective suits were kept and having found an open box of three suits with one missing. ¹ He also found a sheath to a hatchet in appellant's storage locker.

In addition, the state introduced evidence with regard to the state of appellant's car, and the state of the victim's body, to support its theory of premeditation. A forensic serologist testified that samples from the passenger-side carpet of appellant's car, the driver's seat lower back and the carpet of the trunk were consistent with the victim's blood, as was blood on the hatchet found along the roadside of Highway 95. Further, car wash employees testified that the driver's seat of appellant's car smelled of urine, and when state investigators recovered the car, appellant had cut out the seat cushions on the driver's side. The state argued that this evidence supported their theory that the victim was shot in the car and his bladder voided at death. Appellant stated that this happened when he shot Prozumenshikov for the second time. The state also presented a gun spatter expert who testified that the blood patterns on the sunvisor and headliner of the car were consistent with someone being shot in the head in the front seat. The county medical examiner testified that the...