State v. Shannon, C5-93-1029

• Decision Date: 08 April 1994
• Docket Number: No. C5-93-1029,C5-93-1029
• Parties: STATE of Minnesota, Respondent, v. Verdell SHANNON, Appellant.
• Court: Minnesota Supreme Court

Page 790

514 N.W.2d 790

STATE of Minnesota, Respondent, v. Verdell SHANNON, Appellant.

No. C5-93-1029.

Supreme Court of Minnesota.

April 8, 1994.

Syllabus by the Court.

Prosecutor in his closing statement in murder trial made a misleading argument on the lesser-included offense of heat-of-passion manslaughter that confused the jury, and trial court, when given an opportunity to correct the confusion, erroneously failed to do so; error was plain error of a prejudicial nature requiring a new trial.

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

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

Considered and decided by the court en banc without oral argument.

OPINION

COYNE, Justice.

Defendant, Verdell Shannon, was tried on a charge of intentional second-degree murder. The trial court agreed to submit second-degree felony murder and first-degree heat-of-passion manslaughter. In his closing statement the prosecutor made a misleading argument on heat-of-passion manslaughter--which he called "heat of passion murder"--that confused the jury. When the jury, during its deliberations, asked a question indicating that it was confused, the trial court committed plain error of a prejudicial nature in failing to correct the confusion. The jury acquitted defendant of intentional murder but found him guilty of felony murder. Because the jury might appropriately have found defendant guilty only of heat-of-passion manslaughter if the prosecutor had not made a misleading argument and the trial court had corrected the jury's confusion that resulted from it, we reverse defendant's conviction and remand for a new trial.

In State v. Thunberg, 492 N.W.2d 534, 537 (Minn.1992), a case out of Hennepin County, the same county in which this case was tried, we ruled that in instructing a jury on heat-of-passion manslaughter, a trial court should follow the words of the statute; ¹ adequacy of provocation is to be judged from the perspective of a "person of ordinary self-control under like circumstances," not from the perspective of a "sober person of ordinary self-control under like circumstances." ²

Our decision in Thunberg was filed November 20, 1992. Trial in the instant case commenced on January 25, 1993, two months after Thunberg was filed. In his closing argument, in which he urged the jury to find petitioner guilty of the charged offense, intentional murder, the prosecutor, Fred Karasov, made the following statement in support of his argument that defendant did not kill in the heat of passion:

The classic example is, you know, some guy coming home and finding his wife in bed with another man and he just kind of goes crazy and kills that person. That's kind of a classic example of what heat of passion manslaughter is, where they might hold a person less culpable.

But it's not--the standard is not to look at this case under--from Mr. Shannon's point of view. That's not the way to do it because that's not the reasonable person standard. You don't look at somebody who is high on crack, high on cocaine, high on alcohol, if you even want to believe he was, you don't look at that from that point of view. You look at it as a reasonable person, meaning any one of you, who wasn't on drugs or who wasn't taking alcohol, whatever, would what she did have provoked any of you to have killed her. That's the kind of proof that you would need in order to lower his crime from murder in the second degree intentional murder to heat of passion manslaughter.

This statement was improper in two respects: (a) it is clearly inconsistent with what we said in Thunberg; (b) it is an improper argument urging the jurors to decide the case from their own perspective. Defense counsel did not object.

The trial court, in its instructions, simply read the words of the statute, as we said in Thunberg a trial court should do.

During its deliberations, the jury, obviously confused (presumably as a result of the prosecutor's misleading statement in closing argument), asked the trial court the following question:

What do words 'same circumstances' mean? Can they be used to put ourselves in the position of the defendant? Should we assume we are in the same situation and also under the same chemical influence?

Without objection by defense counsel, the trial court responded by stating as follows:

All right. I have to tell you that the instructions that I have given you, both orally and in writing, state the law and I cannot elaborate further on them. So with that, you will return back to deliberate.

The jury acquitted defendant of the charge of intentional murder but found him guilty of unintentional felony murder. Defendant on appeal argues that if the jury had not been misled or confused as to the meaning of heat-of-passion manslaughter, it might well have found him guilty of heat-of-passion manslaughter and that therefore he should be given a new trial.

The court of appeals, in its unpublished decision, affirmed, pointing to defense counsel's failure to object. State v. Shannon, Case No. C5-93-1029, 1994 WL 1115 (Minn.App., Jan. 4, 1994).

The state, while relying on defense counsel's failure to object, also argues in effect that defendant does not have a right to complain because he was not even entitled to have heat-of-passion manslaughter submitted. This argument is really two arguments: (a) that if a defendant claims the killing was an accident or otherwise unintentional, then the trial court should not submit heat-of-passion manslaughter, because the statute refers to intentional...