State of Minnesota, Respondent, vs. Mohamed Mohamed Noor, Appellant.
A19-1089
STATE OF MINNESOTA IN SUPREME COURT
September 15, 2021
Gildea, C.J.
Court of Appeals Filed: September
Keith Ellison, Attorney General, Saint Paul, Minnesota; and
Michael O. Freeman,
Thomas C. Plunkett, Saint Paul, Minnesota;
Matthew D. Forsgren, Caitlinrose H. Fisher, Forsgren Fisher McCalmont DeMarea Tysver LLP, Minneapolis, Minnesota; and
Peter B. Wold, Aaron Morrison, Wold & Morrison, Minneapolis, Minnesota, for appellant.
Daniel J. Koewler, Ramsay Law Firm, P.L.L.C., Roseville, Minnesota, for amicus curiae Minnesota Association of Criminal Defense Lawyers.
William Ward, Minnesota State Public Defender, Cathryn Middlebrook, Chief Appellate Public Defender, Saint Paul, Minnesota, for amicus curiae Minnesota Board of Public Defense.
Robert Small, Minnesota County Attorneys Association Executive Director, Saint Paul, Minnesota; and
Travis J. Smith, Murray County Attorney, Slayton, Minnesota, for amicus curiae Minnesota County Attorneys Association.
S Y L L A B U S
- The mental state necessary for depraved-mind murder,
Minn. Stat. § 609.195(a) (2020), is a generalized indifference to human life, which cannot exist when the defendant‘s conduct is directed with particularity at the person who is killed. - The only reasonable inference that can be drawn from the circumstances proved is that appellant‘s conduct was directed with particularity at the person who was killed, and the evidence is therefore insufficient to sustain his conviction under
Minn. Stat. § 609.195(a) , for depraved-mind murder.
Reversed and remanded.
O P I N I O N
GILDEA, Chief Justice.
This case comes to us following the tragic death of Justine Ruszczyk on July 15, 2017. Ruszczyk had called police that night out of concern for a woman she heard screaming behind her home. When Ruszczyk approached the police vehicle that came in response to her call, appellant Mohamed Mohamed Noor fired his service weapon at her from the passenger seat. Noor‘s bullet struck Ruszczyk in the abdomen and sadly, she died at the scene.
A jury acquitted Noor of second-degree intentional murder,
The issue before us on appeal is not whether Noor is criminally responsible for Ruszczyk‘s death; he is, and his conviction of second-degree manslaughter stands. The issue before us is whether in addition to second-degree manslaughter, Noor can also be convicted of depraved-mind murder. Because conduct that is directed with particularity at the person who is killed cannot evince “a depraved mind, without regard for human life,”
FACTS
After the fatal shooting of Ruszczyk, the State charged Noor with depraved-mind murder,
From this testimony, the jury learned that Harrity and Noor responded to Ruszczyk‘s 911 call about a woman screaming in the alley behind Ruszczyk‘s home. Harrity drove, and Noor was in the
The bicyclist had not yet passed the car when Harrity had “some weird feeling to [his] left side.” As Harrity began turning left, he heard something hit the car and “some sort of a murmur.” He exclaimed, “[O]h, shit or oh, Jesus,” and he immediately pulled his gun out of its holster. At this point, he could see that there was a “figure” outside his window, but he could not distinguish any details. Based on the unknown identity of the figure and the noise, Harrity thought “this could be a possible ambush or something.”
Harrity was still turning to his left when he heard a “pop” and “saw a flash.” His first instinct was to see if he had been shot because he did not know from where the shot came. Harrity did a “quick side eye” to his right and saw Noor with his gun drawn.
Noor testified that as soon as he entered the Code 4, he heard a “loud bang” on the driver‘s side. At the same time, someone appeared outside the driver‘s-side window. Harrity looked at the figure and screamed, “Oh, Jesus,” and immediately reached for his gun. Noor claimed that Harrity looked at him “with fear in his eyes” and that his gun appeared caught in its holster. Noor observed a blonde woman wearing a pink shirt. Noor testified that she began raising her right arm toward Harrity, so Noor rose from his seat, put his left arm across Harrity‘s chest, fired one shot at the woman, and “[t]he threat was gone.” When they got out of the car, Noor realized that he shot an innocent person. Still, he testified that—in the moment—he shot out of concern for Harrity‘s life.1
In its closing argument, the State repeatedly asserted that Noor fired specifically at Ruszczyk and maintained this position when arguing about depraved-mind murder, explaining that Noor was “trying to fire at Ms. Ruszczyk” and that “[w]e know from the evidence, in fact, that the defendant‘s act was specifically directed at Ms. Ruszczyk. The person shot was the person that he meant to kill.” But the State also contended that Noor satisfied the elements of depraved-mind murder because firing the single shot also endangered Harrity and the bicyclist. In response, defense counsel argued that depraved-mind murder does not occur when one is “focusing on a known individual.” According to the defense, depraved-mind murder “is like shooting into a crowd” or “like driving a car, speeding down the road with a blindfold on.”
The jury acquitted Noor of second-degree intentional murder but found him
Noor appealed, arguing in relevant part that the evidence was insufficient to sustain his conviction of depraved-mind murder.2 Noor essentially asserted that our case law creates a “particular-person exclusion,” which prohibits a conviction of depraved-mind murder when the defendant‘s conduct is directed at the person who is killed. A divided panel of the court of appeals affirmed. Noor, 955 N.W.2d at 664. The majority contended that three cases were apposite. Id. at 652-53. It cited State v. Lowe, 68 N.W. 1094, 1095 (Minn. 1896), for the proposition that “third-degree [depraved-mind] murder may occur even if the death-causing act endangered only one person.” 955 N.W.2d at 653. Quoting State v. Mytych, 194 N.W.2d 276, 277 (Minn. 1972), it explained that “[e]ach [depraved-mind murder] case must be determined on its own facts and issues.” 955 N.W.2d at 653 (emphasis omitted). In particular, the court of appeals noted that ”Mytych upheld a conviction of third-degree murder even though the victims were known to and targeted by the defendant.” Id. at 655. Finally, the court reasoned that the particular-person exclusion was analogous to the “without intent to effect the death of any person” language discussed in State v. Hall, 931 N.W.2d 737, 743 (Minn. 2019) (holding that the “without intent to effect the death of any person” language in the depraved-mind murder statute did not create an element that must be affirmatively proven). Noor, 955 N.W.2d at 655-56.
Having concluded that depraved-mind murder includes death-causing actions directed with particularity at the victim, the majority considered the sufficiency of the evidence used to establish Noor‘s mental state. Id. at 657-59. Citing its decision in State v. Coleman, 944 N.W.2d 469, 479 (Minn. App. 2020), aff‘d on other grounds, 957 N.W.2d 72 (Minn. 2021), the court concluded that the evidence was sufficient to establish that Noor “was aware that his conduct created a substantial and unjustifiable risk of death to another person and consciously disregarded that risk.” 955 N.W.2d at 658.3 The majority therefore affirmed Noor‘s depraved-mind murder conviction. Id. at 664. The dissent, however, agreed with Noor that the evidence was insufficient to sustain his conviction for depraved-mind murder. Id. at 664-70 (Johnson, J., concurring in part and dissenting in part).
We granted Noor‘s petition for review.
ANALYSIS
Noor challenges his conviction for depraved-mind murder under section 609.195(a). Under that statute, third-degree murder occurs when a person, without the intent to kill, “causes the death of another by perpetrating an act eminently dangerous to others” that “evinc[es] a depraved mind, without regard for human life.”
According to Noor, our precedent establishes that a depraved mind cannot be evinced when a defendant‘s conduct is directed with particularity toward the person who is killed. For ease of reference, we refer to Noor‘s argument as the “particular-person exclusion.”5 Because the evidence establishes that his conduct was aimed specifically at the victim, Noor argues that the evidence is not sufficient to sustain his conviction of third-degree murder. The State responds that the evidence is sufficient under a line of cases that purportedly refutes the existence of the particular-person exclusion or, at the very least, conflicts with the line of cases cited by Noor. The State also argues that many of Noor‘s cases are distinguishable based on their procedural posture and therefore, the particular-person exclusion is not as well-established as Noor contends. And finally, if we reject the State‘s first two arguments, the State urges us to overrule our precedent and begin our depraved-mind murder jurisprudence anew.
I.
We turn first to the arguments regarding the statutory phrase “depraved mind, without regard for human life.” The interpretation of statutes and case law is a legal question that we review de novo. State v. Friese, 959 N.W.2d 205, 209 (Minn. 2021); State v. Robideau, 796 N.W.2d 147, 150 (Minn. 2011).
A.
We have interpreted the phrase in question many times, and we have consistently held that the crime of depraved-mind murder is a general malice crime. Our “judicial construction of a statute, so long as it is unreversed, is as much a part thereof as if it had been written into it originally.” State v. Schmid, 859 N.W.2d 816, 822 (Minn. 2015) (quoting Roos v. City of Mankato, 271 N.W. 582, 584 (Minn. 1937)).6
We first interpreted the phrase “depraved mind, regardless of human life” in Bonfanti v. State, 2 Minn. 123, 128 (1858). In that case, we held that the defendant‘s intentional stabbing could not evince a depraved mind and that “there [was] an intention and design to effect the death of a particular individual,” which meant that he could not be guilty of depraved-mind murder. Id. at 130. In other words, we said that a “depraved mind, regardless of human life” is distinct from the mental state required for intentional murder. Id.
The holding in Bonfanti implicitly recognized the distinction between the mental state of general malice, see State v. Weltz, 193 N.W. 42, 43 (Minn. 1923) (“[A] depraved mind, regardless of human life” is “exactly descriptive of general malice.“); Coleman, 957 N.W.2d at 78-79 (discussing Weltz, 193 N.W. at 42-43), and the mental state of particular malice, where the defendant‘s actions are directed at a specific person. See 1 Edward Hyde East, A Treatise of the Pleas of the Crown 223-32 (1806) (drawing a distinction between the two); Michael Foster, A Report of Some Proceedings on the Commission for the Trial of the Rebels in the Year 1746, in the County of Surry 261 (3d ed. 1809) (same); Darry v. People, 10 N.Y. 120, 156 (1854) (Denio, J.) (same). In roughly 20 cases spanning the 163 years since Bonfanti was decided, we have repeatedly reaffirmed that depraved-mind murder is a general malice crime and is therefore distinct from the particular malice crime of intentional murder.
An example comes from State v. Lowe, 68 N.W. 1094 (Minn. 1896). There, the defendant persuaded a pregnant woman to stay in a hotel room when she went into labor. Id. at 1094. The defendant promised that he would provide a physician to care for her during childbirth. Id. The victim became sick after giving birth and was unable to get help. Id. Lowe did not seek out medical attention for the victim and did not provide competent care, as he had promised. Id. at 1094-95. The victim died several days later. Id. at 1095. We reasoned that the depraved-mind murder statute did not include acts that were committed with “special regard to their effect on any particular person.” Id. We wrote that, although we did “not deem it necessary that more than one person was or might have been put in jeopardy by such act,” it was, “however, necessary that the act was committed without special design upon the particular person or persons with whose murder the accused is charged.” Id. (emphasis added). Applying the particular-person exclusion to the indictment, we reversed Lowe‘s conviction of depraved-mind murder because the facts alleged that he “had special reference” to the person who died. Id. at 1095-96.7
In State v. Nelson, we discussed the particular-person exclusion before holding
We have continued to rely on the particular-person exclusion in recent years. Beginning in 1970 with State v. Hanson, 176 N.W.2d 607 (Minn. 1970), and most recently in 2017 with State v. Zumberge, 888 N.W.2d 688 (Minn. 2017), we have cited the particular-person exclusion in at least 13 cases when rejecting defendants’ arguments that they were entitled to jury instructions on depraved-mind murder. For ease of reference, we will refer to these 13 cases as the “jury-instruction cases.”
Hanson is representative of the jury-instruction cases. 176 N.W.2d 607. Hanson was convicted of second-degree intentional murder after shooting his wife in the back of the head from 75 feet away. Id. at 609, 612. After discussing the particular-person exclusion, we concluded that Hanson was not entitled “to an instruction that the jury could find him guilty of murder in the third degree as a lesser and included offense.” Id. at 614-15.8
In sum, our precedent confirms that Noor is correct in arguing that a
We reaffirm our precedent today and confirm that the mental state required for depraved-mind murder cannot exist when the defendant‘s actions are directed with particularity at the person who is killed.
B.
Despite our precedent discussed above, the State urges us to adopt the court of appeals’ conclusion that a depraved-mind murder conviction “may be based on conduct directed at a single person, and even a targeted person.” Noor, 955 N.W.2d at 656. The State presents three arguments, which we address in turn.11
1.
First, the State attempts to manufacture a split in our precedent by pointing to seven cases that it contends support its challenge to the particular-person exclusion. See State v. Stokely, 16 Minn. 282 (1871); State v. Brown, 43 N.W. 69 (Minn. 1889); State v. Johnson, 156 N.W.2d 218 (Minn. 1968); State v. Mytych, 194 N.W.2d 276 (Minn. 1972); State v. Gilbert, 448 N.W.2d 875 (Minn. 1989); Hall, 931 N.W.2d 737; Coleman, 957 N.W.2d 72. We are not persuaded.12
To begin with, Stokely was decided before Lowe. Even if it stood for the proposition
The defendant in Stokely made two arguments regarding depraved-mind murder. 16 Minn. at 293-95. First, he challenged the manner in which the district court gave the depraved-mind murder instructions—not their substance, as the State suggests—because he claimed that the judge suggested his guilt to the jury. Id. at 293. We disagreed with the defendant‘s characterization of the instructions. Id. Second, the defendant pointed to the statutory language “without any design to effect death,” see
Moreover, in Hall we said that Stokely is consistent with the particular-person exclusion. 931 N.W.2d at 743 & n.9. In footnote 9 of our decision in Hall, we explicitly distinguished between the particular-person exclusion and the statutory phrase “without intent to effect the death of any person,” found in the first sentence of the depraved-mind murder statute. Id. In reaffirming Stokely‘s conclusion that the State need not disprove an intent to kill, we explained that our conclusion was consistent with Hanson, 176 N.W.2d at 614-15 (relying on the particular-person exclusion), and State v. Wahlberg, 296 N.W.2d 408, 417-18 (Minn. 1980) (same), because the particular-person exclusion is part of the depraved-mind element, not part of the “without” clause. Hall, 931 N.W.2d at 743 n.9. Hall, therefore, does not support the State.14
Brown similarly does not support the State‘s position. In Brown, we reviewed a sufficiency-of-the-evidence challenge to a conviction of first-degree murder, not depraved-mind murder. 43 N.W. at 69. In dicta, we noted that, even placing “the most favorable construction upon the defendant‘s evidence,” it was sufficient to sustain a conviction for depraved-mind murder. Id. In placing the “most favorable construction” on the facts, we necessarily assumed that the defendant did not shoot with particularity at the person who was killed. Id. Thus, the discussion in Brown
Next, the State simply misreads Coleman, 957 N.W.2d 72. In that case, we said:
[A] defendant is guilty of third-degree [depraved-mind] murder, when based on the attending circumstances: (1) he causes the death of another without intent; (2) by committing an act eminently dangerous to others, that is, an act that it [sic] is highly likely to cause death; and (3) the nature of the act supports an inference that the defendant was indifferent to the loss of life that this eminently dangerous activity could cause.
Id. at 80. The State seizes upon this description and argues that it abrogated the particular-person exclusion.
But the State plucks the above-quoted sentence out of Coleman without any reference to the language immediately preceding or following it. Just one page earlier, we repeated Weltz‘s statement that “a depraved mind, regardless of human life” is “exactly descriptive of general malice.” Id. at 79 (quoting Weltz, 193 N.W. at 43). Coleman also acknowledged that our precedent reflects an understanding that the phrase “general malice” 15 refers to an “indifference to human life that was not directed at the person slain.” Id. at 78-79 (original emphasis omitted; new emphasis added). We therefore reject the State‘s attempt to expand Coleman beyond its holding.
For reasons explained above, Stokely, Brown, Johnson, Gilbert, Hall, and Coleman do not support the State‘s position. That leaves only Mytych, 194 N.W.2d 276. Unlike the cases discussed above, the defendant in Mytych made the same argument that Noor does in this case. After being convicted of depraved-mind murder for the shooting of her ex-fiancé and his wife, the defendant argued that her conviction must be vacated because she shot her victims with particularity. Id. at 278-79, 281. Because we rejected that argument, the State urges us to reject Noor‘s argument. After careful consideration, however, we conclude that there is compelling reason to overrule Mytych.
We are “extremely reluctant to overrule” our cases “and require a compelling reason” to do so. Daniel v. City of Minneapolis, 923 N.W.2d 637, 645 (Minn. 2019) (quoting Cargill, Inc. v. Ace Am. Ins. Co., 784 N.W.2d 341, 352 (Minn. 2010)). But we will not adhere to our former decisions if they “are clearly and manifestly erroneous.” State v. Manford, 106 N.W. 907, 908 (Minn. 1906).
Mytych was clearly and manifestly wrong when it was decided, and it remains clearly wrong today. The defendant in that case bought a revolver, called in sick at work, and then flew hundreds of miles under an assumed name before killing the victims. Mytych, 194 N.W.2d at 278. The intended target was the defendant‘s former fiancé, who secretly married another woman and later lied about the nature of his relationship with his new wife in order to engage in further sexual relations with the defendant. Id. Although this fact pattern closely resembles that of a first-degree murder case, the district court, perhaps motivated by a desire to avoid an overly harsh result for a sympathetic defendant, acquitted the defendant of the first-degree charge and convicted her of only depraved-mind murder. Id. at 281, 283.
Mytych‘s analysis in affirming the conviction of depraved-mind murder is poorly reasoned. The analysis is composed almost entirely of direct quotations from the district court, and the district court‘s reasoning, in turn, was heavily dependent on the testimony of a medical expert at trial. Id. at 281-83. The expert testified “that the word ‘depraved’ could mean automatically
And the standard we invented in Mytych, based on the district court‘s reasoning and the medical expert, represented a complete departure from established precedent. We cursorily stated that Lowe, Nelson, and Kopetka were distinguishable but did not explain why that was so. Id. at 281. Upon review, we see nothing about the facts of Mytych that meaningfully distinguishes it from Nelson, 181 N.W. 850, or Kopetka, 121 N.W.2d 783. Similar to Mytych, Nelson carried a loaded gun to a confrontation and killed someone. 181 N.W. at 851. Emotions certainly ran high because he engaged in a “struggle” and was struck in the face. Id.. Similarly, the defendant in Kopetka had become estranged from his wife and therefore likely harbored similar “emotions, disappointments, and hurt” as the defendant in Mytych. 194 N.W.2d at 283. See Kopetka, 121 N.W.2d at 784. We can discern no principled basis for Mytych‘s unexplained distinction of these two cases.
Mytych is also inconsistent with cases decided after it. Just one year after we announced our decision in Mytych, we stated that it was “not a typical application” of depraved-mind murder. State v. Leinweber, 228 N.W.2d 120, 123 n.3 (Minn. 1975) (also identifying Lowe, Nelson, and Kopetka as typical applications of the offense). We repeated that admonition in Wahlberg, where we explicitly declined to rely on Mytych. 296 N.W.2d at 417. Additionally, all 13 of our jury-instruction cases stand in complete opposition to Mytych because they held that the particular-person exclusion operated as a matter of law to preclude a finding of depraved-mind murder. See, e.g., Zumberge, 888 N.W.2d at 698.15
Although efforts to reach a just result in Mytych might have been well-intended, they led us to adopt a “clearly and manifestly erroneous” analysis. See Manford, 106 N.W. at 908. And, as illustrated by the analysis of the court of appeals here, Mytych has created confusion. The State asks us to breathe new life into this erroneous decision to affirm Noor‘s conviction. But “the mere fact that an error has been committed is no reason or even apology for repeating it, much less[] for perpetuating it.” Oanes v. Allstate Ins. Co., 617 N.W.2d 401, 406 (Minn. 2000) (emphases omitted) (quoting Hart v. Burnett, 15 Cal. 530, 600-01 (1860)). Given our dearth of reliance on Mytych, its unexplained departure from Lowe, Nelson, and Kopetka, and the confusion it has caused, we conclude that Mytych must be, and therefore is, overruled to the extent that it is inconsistent with this opinion.
2.
The State‘s second argument is that the jury-instruction cases are distinguishable, and therefore our reliance on the particular-person exclusion is not as well-established as Noor contends. The defendants in the jury-instruction cases were convicted of either first- or second-degree murder and argued on appeal that they were entitled to depraved-mind murder instructions. Relying on Lowe or its progeny, we concluded
Noor responds that the State‘s argument creates a distinction without a difference. Specifically, Noor argues that the jury-instruction cases are indistinguishable here because they also involved analysis of whether depraved-mind murder was rationally appropriate under their facts. See id. (explaining that an instruction is also unnecessary if the evidence does not provide “a rational basis for convicting the defendant of the lesser-included offense” (emphasis added)). We agree with Noor.
The jury-instruction cases were predominately resolved in the manner that Noor describes. For example, in Zumberge, we stated that “[t]hird-degree [depraved-mind] murder ‘cannot occur where the defendant‘s actions were focused on a specific person.‘” 888 N.W.2d at 698 (quoting State v. Barnes, 713 N.W.2d 325, 331 (Minn. 2006)). In Hanson, we said “that the evidence in this case would not have justified a finding of guilty of [depraved-mind] murder in the third degree.” 176 N.W.2d at 614. Similarly, we stated in State v. Phelps that the evidence did not reasonably support a conviction of depraved-mind murder. 328 N.W.2d 136, 140 (Minn. 1982). In Wahlberg, “all the blows were directed toward the victim” and therefore the defendant could not rationally have been convicted of depraved-mind murder, and “there was ample evidence to support a finding of an intentional killing, whereas third-degree murder is an unintentional killing.” 296 N.W.2d at 417-18. In Stiles v. State, “no rational jury could have acquitted Stiles on intentional murder charges and convicted on third-degree murder” because his gunshots were fired only at the victim. 664 N.W.2d 315, 321-22 (Minn. 2003).
In short, reading the jury-instruction cases in the manner urged by the State and adopted by the court of appeals assigns to these cases an untenably narrow reading. Accordingly, we reject the State‘s argument that the jury-instruction cases are meaningfully distinguishable.
3.
Finally, the State asks us to abandon our precedent and reinterpret the depraved-mind murder statute from a clean slate. It essentially contends that there is a compelling reason to overturn our cases that rely on the particular-person exclusion. And that reason, the State argues, is that the particular-person exclusion creates a “significant hole” in Minnesota‘s graduated statutory homicide scheme.16
In sum, the mental state necessary for depraved-mind murder,
II.
Having explained our precedent interpreting the statutory phrase “depraved mind, without regard for human life,” we now apply the law to the facts of Noor‘s case to determine whether the evidence is sufficient to sustain his conviction of depraved-mind murder.
When a challenge is made to the sufficiency of circumstantial evidence, we apply a two-step analysis. State v. Davenport, 947 N.W.2d 251, 266 (Minn. 2020); State v. Harris, 895 N.W.2d 592, 598 (Minn. 2017).18 First, we identify the circumstances proved. Harris, 895 N.W.2d at 598. When identifying the circumstances proved, we “winnow down the evidence presented at trial by resolving all questions of fact in favor of the jury‘s verdict, resulting in a subset of facts that constitute ‘the circumstances proved.‘” Id. at 600. Second, we independently examine the reasonableness of all inferences that might be drawn from the circumstances proved. Id. at 598. In identifying the reasonable inferences drawn from the circumstances proved, “[w]e give no deference to the jury‘s choice between reasonable inferences.” Id. at 601. But if the circumstances proved support conflicting reasonable inferences, one that is consistent with guilt and one that is inconsistent with guilt, the evidence is not sufficient to support the conviction. State v. Andersen, 784 N.W.2d 320, 329-30 (Minn. 2010).
Noor argues that the only reasonable inference that can be drawn from the circumstances proved is that his shot was directed particularly at Ruszczyk. Thus, he
The circumstances proved established that Ruszczyk lived in a low-crime area of Minneapolis and that she called 911 to report a woman yelling in an alley behind Ruszczyk‘s home. Harrity and Noor responded to that call. Noor was in the passenger seat of the squad car, as Harrity drove down the alley behind Ruszczyk‘s house. They made no effort to contact Ruszczyk and spent less than two minutes in the alley before alerting dispatch that the scene was clear. Ruszczyk approached the squad car. As Harrity waited for a bicyclist to pass in front of the squad car, he turned and saw the “silhouette” of a person standing outside the driver‘s-side door of the squad car. Harrity was startled and said something like, “Oh, Jesus.” He had his gun out of its holster but did not point, display, or fire it because he had not determined that Ruszczyk was an apparent and immediate threat.
Before Harrity had time to register what he was seeing, Noor fired his gun in front of Harrity‘s body and out the driver‘s-side window of the squad car. The shot was so close that Harrity‘s first instinct was to check to see if he had been shot. Noor knew that deadly force against a citizen was authorized only if it was apparent that the citizen presented a danger of death or great bodily harm to the officer or another. Noor‘s bullet struck Ruszczyk in her abdomen, and she died moments later from the gunshot wound.
The State concedes in its brief that one reasonable inference from these circumstances is that Noor was startled by Ruszczyk‘s sudden appearance outside the driver‘s-side window. It is also reasonable to infer that Noor fired his gun with particularity at the person who startled him. Nevertheless, the State contends that, when viewed as a whole, the circumstances proved also support a reasonable inference that Noor acted with a depraved mind, without regard for human life, because his shot endangered Harrity and the bicyclist. That argument fails. Our precedent establishes that, when the defendant‘s conduct is directed with particularity toward the person killed, as it was here, the mere proximity of others does not establish indifference to human life in general.20
At bottom, the State emphasizes the unreasonableness of Noor‘s actions and contends this unreasonableness evinces a depraved mind. We may very well agree that Noor‘s decision to shoot a deadly weapon simply because he was startled was disproportionate and unreasonable. Noor‘s conduct is especially troubling given the trust that citizens should be able to place in our peace officers. But the tragic circumstances of this case do not change the fact that Noor‘s conduct was directed with particularity toward Ruszczyk.
Applying the particular-person exclusion to the facts of Noor‘s case, as we must, we hold that the State presented insufficient evidence to prove that Noor acted with a “depraved mind, without regard for human life.” For that reason, we reverse Noor‘s conviction for depraved-mind murder,
CONCLUSION
For the foregoing reasons, we reverse the decision of the court of appeals and remand to the district court to vacate Noor‘s conviction for depraved-mind murder and sentence him on his conviction of second-degree manslaughter.
Reversed and remanded.
Notes
Id. at 156 (Denio, J.) (original emphasis omitted; new emphases added). We agreed with Darry in Lowe and explicitly adopted its particular-person exclusion. 68 N.W. at 1095. We did not, however, adopt Darry‘s more-than-one-person requirement. Id. In affirming Noor‘s conviction, the court of appeals erroneously focused only on our rejection of the more-than-one-person requirement and ignored our adoption of the particular-person exclusion. See Noor, 955 N.W.2d at 652-55. The State makes the same mistake in its briefing to our court.The act must evince a depraved mind, regardless of human life. These words are exactly descriptive of general malice and cannot be fairly applied to any affection of the mind having for its object a particular individual. They define general recklessness and are not pertinent to describe cruelty to an individual. The act by which the death is effected must evince a disregard to human life. Now, a brutal assault upon an individual may evince animosity and hate towards that person, and a cruel and revengeful disposition, but it could not properly be said to be evidence of a recklessness and disregard of human life generally.