922 N.W.2d 706
Minn.2019Background
- Victim Senicha Lessman (25) and her 32-week unborn child were killed by stabbing and asphyxiation; defendant Vern Jason Mouelle was identified by physical evidence (DNA, fingerprints) and incriminating internet searches and texts.
- Mouelle was indicted for first-degree premeditated murder and first-degree murder of an unborn child; tried by jury in Dec. 2017 and convicted on all counts.
- Before opening statements, defense counsel had an ex parte chamber conference with the judge, mentioning Nix v. Whiteside and concerns that Mouelle might commit perjury; the judge declined to recuse and presided.
- Mouelle testified, claiming an unknown "Anthony" committed the killing; counsel conducted testimony in standard Q&A format.
- The court misread and omitted language in the jury instructions on the unborn-child murder charge (omitting a paragraph clarifying second-degree murder where premeditation is doubtful); no contemporaneous objection was made.
- Mouelle received consecutive life-without-release sentences on both first-degree murder counts; on appeal the State conceded the sentence for the unborn-child conviction was unauthorized under Minn. Stat. § 609.106.
Issues
| Issue | Plaintiff's Argument (Mouelle) | Defendant's Argument (State/Judge/Counsel) | Held |
|---|---|---|---|
| 1) Did the ex parte disclosure that Mouelle might perjure require judge recusal / cause structural error? | Ex parte Whiteside reference created appearance of partiality; judge should have recused; structural error -> automatic reversal. | Knowledge of damaging info alone does not create reasonable question of impartiality; judge can set aside collateral knowledge; no appearance of bias. | No structural error; judge need not recuse; no appearance of partiality. |
| 2) Was counsel ineffective for disclosing client communications in the ex parte talk? | Counsel breached loyalty/confidentiality (MRPC) and prejudiced the trial by alerting judge to possible perjury. | Any disclosure did not affect trial fairness; jury unaware; no prejudice under Strickland. | Ineffective-assistance claim fails for lack of prejudice. |
| 3) Did erroneous/missing jury instructions on unborn-child murder constitute plain error? | Misread instruction and omitted paragraph effectively removed premeditation requirement, negating reasonable-doubt protection. | Jury concurrently convicted on first-degree murder of mother (which requires premeditation); overwhelming evidence of premeditation; omission not prejudicial. | No plain error as defendant failed to show substantial-rights prejudice; conviction stands. |
| 4) Was life-without-release sentence for unborn-child murder authorized by statute? | Statute does not authorize life-without-release for §609.2661 offense. | State conceded sentence unauthorized. | Sentence reversed for unborn-child conviction; remanded for resentencing. |
Key Cases Cited
- Nix v. Whiteside, 475 U.S. 157 (court may permit counsel to refuse to assist in client perjury; counsel not ineffective for dissuading perjury)
- Strickland v. Washington, 466 U.S. 668 (ineffective-assistance two-prong test: performance and prejudice)
- Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (test for whether judge's nondisclosure requires reversal)
- Lowery v. Cardwell, 575 F.2d 727 (bench-trial context where counsel's withdrawal motion for perjury prejudiced due process)
- Dorsey v. State, 701 N.W.2d 238 (Minn. 2005) (presumption judges can set aside collateral knowledge; review of judicial disqualification under Code of Judicial Conduct)