State v. Tscheu
| Decision Date | 31 December 2008 |
| Docket Number | No. A06-2239.,A06-2239. |
| Citation | 758 N.W.2d 849 |
| Parties | STATE of Minnesota, Respondent, v. David Michael TSCHEU, Appellant. |
| Court | Minnesota Supreme Court |
Lori Swanson, Attorney General, St. Paul, MN; and Donald F. Ryan, Crow Wing County Attorney, Brainerd, MN, for respondent.
Mark D. Nyvold, St. Paul, MN, for appellant.
Following a jury trial in Crow Wing County District Court, appellant David Michael Tscheu was convicted of first-degree murder in connection with the death of Bonita Thoms. Tscheu filed a direct appeal to this court, arguing that the district court erred (1) when it denied his motion for judgment of acquittal at the close of the State's case, (2) by permitting his prior convictions to be used for impeachment, and (3) by admitting hearsay testimony. We affirm.
The evidence at trial established that Bonita Thoms was last seen alive on Friday, February 25, 2005. She went to work that day, and records from a local grocery store confirm that she made purchases at the store on February 25, presumably during her lunch break. Records from Thoms's employer indicate that she left work at approximately 3:35 p.m. A witness testified to seeing Thoms in her car, apparently on her way home, sometime between 3:30 and 4:35 p.m. and when she was approximately 5 miles from her home.
Later that evening, Thoms's stepson J.B. tried to reach Thoms by telephone, but was unsuccessful. J.B. telephoned Thoms again the morning of Saturday, February 26, but he again failed to reach her. J.B. wanted to tell Thoms that he was coming to her residence in Aitkin, Minnesota, to pick up a camper that he had stored on her property.
J.B. arrived at Thoms's home at approximately 3:30 p.m. on Saturday, February 26. When he arrived, J.B. saw Thoms's red Buick LeSabre parked in the driveway. He also noticed that water was running on the ground outside of the house, and that Thoms's dog, which normally slept indoors, was outside and had been outside long enough for ice crystals to form on his face. J.B. entered Thoms's home through the closed but unlocked front door; he called out to Thoms, but received no response. J.B. then heard the shower running. When he opened the bathroom door, J.B. found Thoms dead in the bathtub. He then called 911.
Crow Wing County Deputy Sheriff Donald Downie arrived at Thoms's home around 4:08 p.m. in response to the 911 call. Downie testified that there were no signs of fresh forced entry to the front door, and that other doors to the home were still locked when he arrived. In the bathroom he noted that an "older" shower curtain, which had been repaired with masking tape that had yellowed, was intact and three-quarters closed. A pair of women's underwear was hanging from the shower rod and three pairs were on the floor. Thoms was laying on her right side in the tub and was nude except for her brassiere and a wrist watch, which had been pushed up onto her left hand. The shower was spraying cold water onto Thoms's head. The bathtub was filled with water to the overflow drain, and most of Thoms's head, including her mouth and nose, were submerged. Thoms's eyeglasses were floating in the water. Downie turned off the shower and drained the tub. Downie then photographed the scene, and photographs he took were introduced into evidence at trial.1
Downie also testified that he saw a newspaper from February 25 that appeared unread, and several perishable food items on the counter in Thoms's kitchen. These items matched those Thoms purchased at the grocery store on February 25, and the State offered testimony that Thoms normally would have immediately placed the perishable items into the refrigerator upon returning home. Although the house was searched, Thoms's purse and keys, usually kept on the kitchen counter, were never located.
One of Thoms's daughters testified that because Thoms heated her home with a wood-burning stove, and it had been very cold that winter, Thoms would often take a bath to warm up after arriving home from work. Thoms's other daughter testified that Thoms would remove her watch and eyeglasses before bathing, and that Thoms generally only showered if she wanted to wash her hair, which she did every other day.
In addition to the background evidence about Thoms and the crime scene evidence, the State also offered testimony from Dr. Janis Amatuzio who performed the autopsy. Dr. Amatuzio determined that Thoms died sometime between 3:18 and 9:18 p.m. on Friday, February 25, as a result of asphyxia from drowning. She concluded that Thoms's death was a homicide based on bruise patterns on the body, the way the body was found, and the significant amount of water in Thoms's stomach and lungs. Dr. Amatuzio noted that Thoms was taking a number of medications—including a blood thinner that caused her to bruise easily—but she ruled out cardiac arrhythmia as the cause of death.
According to Dr. Amatuzio, the pattern of injuries on the body suggested that Thoms was restrained in the bathtub by pressure on her left leg and a hand on the back of her neck, causing her to drown. Those injuries included a cluster of round bruises located just above Thoms's left knee, consistent with fingertip pressure; subcutaneous hemorrhaging in the strap muscles of the posterior neck, suggesting a restraint hold; burst blood vessels in both eyes, indicating neck compression; a bruise on the left side of Thoms's jaw; and circular bruises—two on Thoms's left front arm and three below her left shoulder— that were consistent with fingertip pressure. Dr. Amatuzio testified that all of these injuries were inflicted perimortem, meaning at or around the time of death.
Dr. Amatuzio testified that other injuries on the body suggested that Thoms was involved in a struggle: a scrape or abrasion behind and below her left ear, indicating contact with an oval-shaped or linear object, such as a kitchen countertop; a superficial bruise on her left elbow, possibly caused by a fall against a blunt surface; a linear mark running from Thoms's left hip and down her thigh, suggesting impact with a straight object such as a piece of furniture or a door; bruises on her left upper chest and back; and three round bruises in the front and one bruise in the back of Thoms's right upper arm, likely caused by thumb and fingertip pressure and consistent with a restraint hold. Dr. Amatuzio testified that these struggle-related injuries were inflicted perimortem.
Finally, regarding bruising on Thoms's body, Dr. Amatuzio described defensive injuries that included subcutaneous bleeding in the knuckle of the left third finger, indicating that Thoms was involved in an altercation or tried to push someone away, and a small bruise on the outside of Thoms's left wrist, suggesting that Thoms was grabbed or tried to ward off a blow. The defensive injuries were suffered perimortem.
Dr. Amatuzio also conducted a sexual assault exam as part of the investigation. There were no signs of injury to the vagina, perineum, rectum, or anus. Hemorrhoids around the outside of the anus were also uninjured. When asked whether it would be unusual for someone's anal cavity not to show signs of injury after forced intercourse, Dr. Amatuzio testified that the anus may or may not show evidence of tears or injury, depending on the degree and rapidity of the force used. She also noted that hemorrhoids could cause anal intercourse to be uncomfortable, but that they would not cause any obstruction to the anus.
Semen was found inside Thoms's rectum that matched Tscheu's DNA. DNA analyst Kristine Deters testified that, statistically speaking, such a match would not be expected to occur more than once among the world's population. Semen consistent with Tscheu's DNA was also found on Thoms's perineum. Deters estimated that 99.95% of the general population could be excluded as contributors to the perineal deposit.2
No semen was found in Thoms's vagina. Deters was asked about the possibility of seminal drainage from the vagina into the rectum after vaginal intercourse. She testified that typically vaginal intercourse causes an abundant amount of sperm in the vaginal cavity and only occasional sperm in the rectal cavity.
Finally, regarding the DNA evidence, the State showed that a partial male DNA profile was obtained from Thoms's fingernail clippings. Statistically speaking, 0.9 to 7.4% of the population, depending on ethnic background, could be expected to be included in the group having this particular profile. This profile was tested against other known samples of male individuals who submitted DNA samples to the Bureau of Criminal Apprehension (BCA) during the course of the investigation. Except for Tscheu and his father, all known samples were excluded.3
The State's evidence also explained the investigation of Tscheu. Tscheu was initially identified as a person of interest because Thoms's stepson identified him as someone who had visited Thoms's residence in the past. Deputy Downie first contacted Tscheu about Thoms's death on March 17, 2005. At that time, Tscheu said that the last time he had seen Thoms was shortly before August 2004. The record reflects that on the day of Thoms's death, Tscheu and his father drove together to a construction site in Crosslake. Tscheu's timesheet indicated that he worked 5.5 hours on that day. Tscheu's father told police that he and Tscheu visited a Fleet Farm after work to purchase automobile parts. Tscheu told police that he then went home and changed the engine in his van that night. Downie estimated that it would take about 27 minutes to drive from the job site in Crosslake to Thoms's residence in Aitkin.
When asked about Thoms's death, Tscheu told police that he heard from his mother or a man named B.B. that Thoms had been strangled, but B.B. did not corroborate Tscheu's account. Tscheu also told Deputy Downie that he had never had sex with Thoms. Phone records did not indicate any calls between Thoms and Tscheu,...
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