State v. Thunberg

• Decision Date: 20 November 1992
• Docket Number: No. C3-91-134,C3-91-134
• Citation: 492 N.W.2d 534
• Parties: STATE of Minnesota, Respondent, v. Lloyd Allan THUNBERG, Appellant.
• Court: Minnesota Supreme Court

Page 534

492 N.W.2d 534

STATE of Minnesota, Respondent, v. Lloyd Allan THUNBERG, Appellant.

No. C3-91-134.

Supreme Court of Minnesota.

Nov. 20, 1992.

Syllabus by the Court

1. Trial court, in instructing jury on heat-of-passion manslaughter, should follow the words of the statute; 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. Trial court did not abuse its discretion in allowing the prosecutor to impeach defendant's credibility with facts underlying his prior conviction, where defendant "opened the door" to such inquiry.

3. Evidence was sufficient as a matter of law to sustain defendant's conviction of second-degree felony murder against claim by defendant that he was so intoxicated as to be unable to formulate a specific intent.

John Stuart, State Public Defender, Susan L.P. Hauge, Asst. State Public Defender, Minneapolis, for appellant.

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

Heard, considered and decided by the court en banc.

KEITH, Chief Justice.

Defendant, Lloyd Allan Thunberg, was found guilty by a district court jury of second-degree felony murder. His conviction was affirmed by the court of appeals. State v. Thunberg, C3-91-134, 1991 WL 257952 (Minn.App., filed December 10, 1991) (unpublished opinion). We granted review. Defendant argues that (1) the trial court committed prejudicial error by using the words "sober person of ordinary self-control" in the jury instruction on heat-of-passion manslaughter; (2) the trial court abused its discretion by permitting inquiry into the facts underlying a prior conviction used to impeach defendant's credibility; and (3) the evidence was insufficient as a matter of law to sustain the conviction for second-degree felony murder.

On December 31, 1989, defendant killed Katherine Jones in their duplex in northeast Minneapolis, stabbing her at least four times. Jones died from exsanguination as a result of the stab wounds.

Jones and defendant had been dating for approximately seven years, but their entire relationship was fraught with conflict. Each accused the other of physical and emotional abuse, and Jones often kicked defendant out of the house, sometimes so she could be with other men. In November 1989, however, after defendant came home from the hospital following surgery, Jones told defendant that she wanted to divorce her incarcerated husband and marry him. This prospect excited defendant, but within a month, the relationship again turned sour.

Just before Christmas, defendant learned that Jones was seeing one of his best friends, Mike Jensen. The day after Christmas, defendant learned that Jones and Jensen had gone up north together. Defendant was very distraught and spent much of the week drinking and crying. His friends repeatedly told him to forget about Jones, but defendant said he still wanted to make the relationship work.

On the morning of December 31, Lillian Belcourt, Jones' sister, told defendant that Jones had called and indicated that she was moving up north with Mike Jensen. The defendant said that he already knew this because he had talked to Jones. Defendant testified that he felt like dying and even started to cut his wrists before a roommate, Joe Barrett, stopped him.

About an hour later, Jones arrived at the duplex with Jedediah, their 15-month-old son. Shortly after Jones told him to leave, defendant ran into the kitchen and hit Jones in the head with his fist. Belcourt then pushed him into the living room, where Barrett and Junior, Jones' brother, restrained him while Jones left the house.

Later that evening, Belcourt, Jones, and Jedediah returned to the duplex, along with Jensen. Soon after they arrived, defendant woke up and came into the kitchen, mumbling something. After taking out a knife from a kitchen drawer, he ran at Jones, stabbing her four times in the abdomen and face. Belcourt went into the bedroom to call 911. Jones crawled to the bedroom and passed out.

Meanwhile, Jensen briefly held defendant back with a chair. Defendant never said anything but jabbed the knife at Jensen's chair a few times. Defendant testified that he did not remember the stabbing but noticed the blood and heard Jensen say to him, "You crazy, bastard. You stabbed her." At that time, defendant remembered holding a red-handled knife, which he subsequently stuck in the front porch as he left.

Upon leaving, defendant initially ran upstairs and told his neighbors that he had stabbed "his old lady." After they threw him out, he wandered for awhile before arriving up at Eunice Stimac's apartment. Around 11:00, while still at Stimac's, defendant called the police and told Officer Jorgensen, "I killed my old lady." Defendant asked to speak to Sergeant Hussman, who arrived at the station a few minutes later and spoke to defendant several times. The police traced one of the calls to Stimac's apartment and arranged to have the apartment surrounded. When defendant voluntarily left the apartment and got into a car, Hussman approached the car and arrested him.

Defendant was taken to the hospital for tests. While at the hospital, he asked Dr. Smith how Jones was doing. Dr. Smith told him that she was dead and that "whoever stabbed her killed her." Defendant said that he had killed her. Defendant's hospital blood tests revealed that his blood alcohol content was .24, and his toxicology expert testified at trial that it could have been between .26 and .28 at the time of the stabbing.

I.

Defendant argues that the trial court committed prejudicial error in its instruction on heat-of-passion manslaughter. Minn.Stat. Sec. 609.20(1) (1990) provides that one commits first-degree heat-of-passion manslaughter if one:

intentionally causes the death of another person in the heat of passion provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances, provided that the crying of a child does not constitute provocation[.]

CRIMJIG 11.19, the recommended jury instruction, provides:

The statutes of Minnesota provide that whoever intentionally causes the death of a human being in the heat of passion provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances [provided that the crying of a child does not constitute provocation] is guilty of manslaughter in the first degree.

At the request of the prosecutor and over the objection of defense counsel, the trial court changed the wording of the recommended instruction to read "sober person of ordinary self-control under like circumstances." (Emphasis added).

The court of appeals, approving of this, reasoned that the standard adopted by the legislature is the "reasonable person" standard and that such a person is a sober person. It further concluded that even if it was error to so instruct the jury, any error was harmless because the jury rejected defendant's "intoxication defense" with respect to the murder charges and therefore must have decided that defendant was "functionally sober" (this despite defendant's blood alcohol content of somewhere between .24 and .28 at the time of the stabbing).

We disagree with the court of appeals' conclusion that the instruction is a proper instruction.

The traditional approach of the courts that have considered this issue is that the adequacy of provocation is to be judged from the perspective of the reasonable sober person. 2 W. LaFave and A. Scott, Substantive Criminal Law Sec. 7.10(b)(10) (1986). See, e.g., Bishop v. United States, 107 F.2d 297, 302-03 (D.C.Cir.1939) ("If a defendant is intoxicated, there is no requirement that provocation for 'heat of passion' be greater than that that would arouse a reasonable, sober man to act.").

However, as LaFave and Scott point out, there has been movement in the criminal codes away from the strictly objective reasonable person test for determining the adequacy of provision. The Model Penal Code provides for reduction from murder to manslaughter if the killing was "committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse," with reasonableness to be "determined from the viewpoint of a person in the actor's situation under the circumstances as [the actor] believes them to be." Model Penal Code Sec. 210.3 (Official Draft and Revised Comments 1980). The comment to this section states in relevant part:

The critical element in the Model Code formulation is the clause requiring that reasonableness be assessed "from the viewpoint of a person in the actor's situation." The word "situation" is designedly ambiguous. On the one hand, it is clear that personal handicaps and external circumstances must be taken into account. Thus, blindness, shock from traumatic injury, and extreme grief are all easily read into the term "situation." This result is sound, for it would be morally obtuse to appraise a crime for mitigation of punishment without reference to these factors. On the other hand, it is equally plain that idiosyncratic moral values are not part of the actor's situation. * * * The Model Code endorses a formulation that affords sufficient flexibility to differentiate in particular cases between those special aspects of the actor's situation that should be deemed material for purpose of grading and those that should be ignored. There thus will be room for interpretation of the word "situation," and that is precisely the flexibility desired. There will be opportunity for argument about the reasonableness of explanation or excuse, and that too is a ground on which argument is required. In the end, the question is whether the actor's loss of self-control can be understood...