*1 Minnesota, Respondent, STATE JURGENS, Appellant.
Lois Germaine
No. C3-87-1165. Appeals Minnesota.
Court
3,May 1988. July
Review Denied *2 III, Gen., Humphrey, Atty.
Hubert H. Atty., C. Foley, Ramsey Co. Steven Tom DeCoster, Atty., Ramsey Co. St. Asst. Paul, respondent. for Ellis, Thomson, Douglas Deborah K. W. Paul, Ellis, Ltd., appel- Thomson & St. lant. considered,
Heard, and decided C.J., WOZNIAK, and and CRIPPEN SCHULTZ,*JJ.
OPINION WOZNIAK, Judge. Chief of convic- appeal judgment from a This degree felony sentencing for third tion and 609.195(2) (1965). murder, Minn.Stat. § affirm. We
FACTS on Jurgens was indicted Appellant Lois for one count of second January of third two counts degree murder and 609.19 degree murder. Minn.Stat. See §§ 609.195(2)(1965). charges arose and Jurgens, Jur- death of Dennis out of the son, April gens’ adopted change in the death cer- the October “homicide.” “deferred” to tificate certificate, file the coroner’s The death Const, * pursuant art. pointment § to Minn. Appeals by ap- Acting judge of the Court of following in- tor treated Dennis area of who testified the generally, were reviewed Jurgens’ biological unusual, Solem, moth- Dr. quiries by Dennis the burn was er, Jerry specialist, gave expert opinion Sherwood. bums his how the 1963 inflicted. three-and-one-half of his death. He was the time years old at Lois was at home alone with the adopted and was Jurgens’ second much of children the weekend Dennis’ *3 Jurgens adop- home for placed in the first going death. Harold told he relatives was he when was tion December April to be out of town the weekend of Ramsey County The Welfare months old. testimony and 1965. Harold’s in 1965 Jurgens testified Lois adoption case worker showed he was in Wisconsin from the eve- placement, particu- had concerns about ning Friday, April p.m. until 9 or 9:30 Dennis would relate to their larly over how Saturday, April Jurgens herself Robert, husband, child, but that her older police told White Bear Lake her husband Jurgens, very enthusiastic was Harold had been northern Wisconsin and she Jurgens adopting Dennis. Lois was about Saturday called him on tell him to Dennis age, about Dennis’ the fact also concerned up was sick. She said Harold was with him Robert, larger than and some that he was night. most of the physical of his other characteristics. state, case, present- The at the end of its A of witnesses testified concern- number testimony concerning ed the of June Bol a ing Jurgens’ physical abuse of Dennis Lois by Jurgens statement made to her Harold Jurgens’ Jurgens. counsel admitted Den- eight years some after Dennis’ death. Jur- nis was an abused but contested the Bol, gens objected testimony. to this June extent of the abuse. Much of the testimo- Jurgenses had known the since who large ny came from members of early took into her home in the 1970’sfour Jurgens family, frequent- who saw Dennis Jurgenses adopted. children the She ly adopted. from the time he was This a related conversation with Harold Jur- impeached by attempts was coffee, gens, at her kitchen table over against Jurgens, show bias and the wit- dropped by when Harold after work. Ac- abuse, report nesses’ failure to to testi- cording testimony: to her neglect fy proceedings to it in 1966 con- said, He I was out of town when Dennis cerning Jurgens, report Robert or to it to doing I died. was some electrical work police investigating Dennis’ death. for some friends. Lois called and said Witnesses testified incidents of forced and Dennis had it I she been at and knew feeding, Jurgens’ pulling Dennis’ ears and put things I my what that meant so lifting ears, up by striking him him right together and went home. IWhen hand, tying him to the toilet until got I home took Dennis to bed with me movement, he had a bowel tying and him to night and in the middle of the either he his crib. Witnesses Dennis testified go potty potty I him had to took and bruised, frequently eyes often had black said, either he said—he he said done or sunglasses apparently and wore to conceal pot I looked in the and he was done.and them, progressively and became thinner there, nothing and I took him there was and more withdrawn. Witnesses testified morning me and in the back to bed with put clothespin that told them she a he was dead. penis stop bedwetting. on Dennis’ The autopsy showed an tip of the point Bol testified at one that this con- penis. occurred in later said it versation 1973. Bol testified that at the time of August
In hospitalized Dennis was good abdomen, the conversation she was on terms with severe bums on his lower Later, testified, Jurgenses. genitals Jurgens reported and buttocks. to with physician injuries dirty had sent her socks and a lead occurred washing pipe adopted when she was she had asked for the Dennis the sink when and he turned on the hot water. The doc- children’s clothes. She had also received n harassing autopsy report. Dr. telephone calls which she McGee testified the Jurgens. perforation ileum thought were was caused blunt, injury occurring traumatic from 8 to up in Jurgens testified he woke Robert 48 hours before death. He testified it night Dennis and heard middle of could not have been caused fall down talking in bathroom. his father stairs, floor, nor a fall onto the unless morning, as Lois told next The height was from a of at least six feet onto gasping in his found Dennis crib police, she fixed, protruding object. Dr. McGee esti- pro- doctor was called at 9:30. mated the time of death as 6 to 8 hours him dead around 10:00 a.m. nounced autopsy performed before at 2:00 police physi- Jurgens told both and the p.m. probable McGee testified it more day had fallen before cian stomach, the trauma was to Dennis’ rather cold, running a fever. Robert and had back, although than his McGee acknowl- Jurgens testified he remembered Dennis edged the trauma could have been to Den- falling long the basement stairs not down *4 nis’ back. his death. He testified his mother before the stairs him started ran down after and changed Dr. McGee the death certificate hit and shake him. He testified Dennis 1986, listing in October the mode of death on his had landed stomach at the bottom homicide, and the cause of death as Jurgens He also testified told the stairs. peritonitis perforation, from the “due to him in 1987 the fall down the stairs oc- injuries traumatic consistent with battered death. curred a week before the syndrome.” changes child These were presented the medical testimo- The state exhumed, body made before and Votel, ny of Dr. Thomas who was the coro- McGee conceded he had no evidence other 1965; Woodburn, in Dr. who ner Robert than that available in 1965. 1965; performed autopsy in Dr. Mi- Dr. conceded that McGee battered McGee, Ramsey chael who is the current death, syndrome is not a cause of testi- but examiner; County and Dr. medical William helps support syndrome finding fied the Stumer, expert pediatric who is an in fo- peritoni- of homicide. McGee testified the pathology. autopsy report rensic The 1965 great pain tis would have caused Dennis morgue photographs introduced. were possible he had been in the and it was not Votel, body, Dr. who viewed the testified bathroom, talking, shortly his death. before that he felt Dennis was a battered testified, photographs of the He from 1987 police that he was told White Bear Lake home, possible Jurgens it was not investigating death, were and that he injuries caused Dennis’ internal were marked the mode of death on the death or onto the fall down the basement stairs certificate as “deferred” further to await floor. basement investigation. information from the Dr. Sturner testified bowel Dr. Woodburn from testified there were death, 12 to 36 hours before occurred body 50 to 100 bruises Dennis’ at the (most like- blunt trauma caused external time of death. He testified there was mid-abdomen), that, while ly to the upper linear bruise on the He abdomen. could have result- some of Dennis’ bruises ileum, perforation of identified a or parents, described ed from the falls bowel, cause seepage small as the injury could not have occurred the bowel gastrointestinal peritoneal material into the such a manner. cavity, causing peritonitis. He testified the perforation was, had no internal cause and charged Jurgens one The indictment opinion, in his an external force degree intentional murder of second count equivalent generat- or trauma the force degree felony mur- two counts of third ined a train wreck. occurring in (one charged death count der assault, aggravated of an the course
Dr. McGee testified to his exhumation of occurring charged as a result body January death 1987. He re-examined other dangerous weapon). The of a the small bowel and reviewed the 1965 of the use wrong. Jurgens not her act that it was finding a verdict jury returned guilty mentally ill Jurgens murder and at the degree found guilty of second (count speci- murder time of the offense. degree of third requested instruc- fied). Jurgens had The trial court sentenced to an manslaughter (death tion on second sentence, law, indeterminate under culpable negligence). She resulting from opinion it expressing the had the while charge of this when omission objected to sentencing guidelines. option of under the were discussed. The trial jury instructions grounds The court there were stated this offense to submit lesser declined court departure, imposed and it would have indicated would although guidelines of at sentence under the least 15 three-year statute limitations waive years. presentence no There was investi- offense. applicable to that gation. trial, Jurgens phase of In the second support presented expert witnesses to two ISSUES Perkins, a defense. Dr. her mental illness refusing 1. Did court err in the trial who administered and psychologist clinical dismiss the indictment? tests, psychological interpreted various allowing 2. Did court err in not 1967. Dr. Perkins also tested Jurgens to the statute of waive limitations that, opinion, Jurgens in his testified on a lesser-included offense? suffering paranoid schizophrenia test Dennis’ death. The MMPI the time of admitting 3. Did err in the court however, gave Perkins hearsay statement? *5 range, the Jurgens within normal showed sup- 4. to Was the evidence sufficient upper limits, although the on both the near port the conviction? Also, paranoia schizophrenia scales. 5. Did the court its discretion in abuse interpreted Jurgens’ 1965 MMPI was sentencing presentence investiga- without a psychotic showing no indication of distur- tion? Moreover, psychologist the ex- bance. who September Jurgens amined in 1965 found ANALYSIS signs
no
of mental illness.
Dr. Per-
Even
kins,
Jurgens
testing
in
conclud-
after
1.
to
indictment
Failure
dismiss
say
mentally
ed
he could not
that
was
Jurgens
22-year pre-indict-
contends the
disturbed.
delay
process
ment
a
of due
was denial
gave
Stephens,
psychiatrist,
Dr.
also
prosecution
that
should be estopped
opinion
Jurgens
suffering
his
that
altering
bring
from
its 1965 decision not to
paranoid schizophrenia
from
in 1965. He
charges.
criminal
She also contends the
Jurgens
experi-
he
testified
believed
indictment should have been dismissed be-
hallucinations; however,
delusions or
enced
illegal
cause it
was based
evidence.
to
references
such
think-
disturbed
Due process pre-indictment delay
a.
—
ing in the extensive medical records were
testified,
pre-indictment
In order
early
Stephens
delay
from the
1950’s.
to
show
however,
Jurgens’
process,
violates
a defendant
relationship
that
due
must es-
delusional
tablish
quality, particular-
Dennis had a
* * *
ly
(shared
husband)
in her belief
pre-indictment delay
pain.
that Dennis did not feel
prejudice
to
substantial
[defend-
rights
fair trial and
to a
that the
ant’s]
presented
expert testimony
The state
delay
device to gain
was an intentional
Erickson,
court-appointed psychi-
Dr.
advantage
tactical
over
accused.
that,
atrist,
opinion,
testified
who
in his
Marion,
Jurgens
psychotic
1965. United
v.
April
was not
in
States
404 U.S.
diagnosis
para-
He testified that even a
S.Ct.
in the however, however, issue, indication, she incriminated we statute limitations We conclude the trial did not err fail in that examination. conclude court herself prom- there a manslaughter shown ing has not to submit second nor that she relied on charge prosecute, supported such a ise not as Leinweber, See Northern Petro- it to her detriment. evidence. See State v. Co., (1975) Fire Insurance v. U.S. chemical Co. Minn. (Minn.1979). 408, 410 (lesser-included 277 N.W.2d need not be offense sub if mitted not “reason evidence would grand jury evidence c. Inadmissible ably support a conviction of the lesser de claims indictment * * * at the gree finding same time dismissed because have been should offense.”). guilty greater of the of not grand had the amended death certifi degree felony In third murder was disagree. Although We it. cate before defendant, record, without in- committed when transcript is grand death, cause death while tent its use at Dr. McGee is trial that clear committing person. felony upon gave gave the same as he much (1965). 609.195(2) predi- Minn.Stat. of death. A cause concerning § at trial felony charged against Jurgens cate regarding certificate’s statement death assault, aggravated requiring that in- generally is inadmissible of death mode tentionally bodily inflicted harm great hearsay. it is conclusion and because dangerous weap- assaulted with a Pennsylvania Insurance Hestad Life 609.225, 1 and 2 on. Minn.Stat. subds. Co., § (1965). Assault, turn, defined as an (1973). testimony, Dr. McGee’s live fear an- however, missing act done “with intent to cause provided the foundation harm,” bodily immediate or “inten- other of hearsay the written statement and made bodily tional infliction harm.” Minn. merely cumulative. 609.22 Stat. § statute limitations Waiver of Jurgens requested submission of sec- degree manslaughter as a lesser-in- ond Jurgens claims the in re- court erred cluded offense. This was defined fusing to her to allow the statute waive causing defendant’s the death of another: so that manslaughter limitations could be (1) culpable By negligence whereby his as a submitted offense.1 lesser-included risk, he creates unreasonable authority
There is conflict of on wheth consciously causing takes chances of jurisdiction er the statute limitations is great another; bodily death or harm to al, See, or a defense which may waived. be 609.205(1) (1965). Culpable Minn.Stat. § *7 418, e.g., Wild, v. United States 551 F.2d negligence includes: (D.C.Cir.1977), 422 denied, cert. 431 U.S. may intentional the actor conduct which 916, 2178, (holding 53 97 S.Ct. L.Ed.2d 226 not intend to be harmful but which an waived); can limitations be also see ordinary reasonably prudent man Tupa, 488, State v. 194 875 Minn. 260 N.W. recognize involving strong would (1935) (discussing whether defendant had probability injury of to others. limitations). waived the statute of This Beilke, v. State 267 Minn. 127 recently court has held a criminal statute 516, 521 N.W.2d jurisdictional limitations is not and can be waived expert the defendant. testimony State v. The medical established Johnson, 422 N.W.2d 14 (Minn.Ct.App. that Dennis’ death blunt 1988). (or possibly to the trauma abdomen argues Jurgens manslaughter The state waived this claim failure to ment for submit a failing jury to raise it until instructions were charge, required would which have such a waiv- discussed. This contention is incorrect. Jur- er. gens sought grand jury to dismiss the indict-
553
back).
required
degree of force
inflicted here
The
left no
lower
reasonable basis for
substantial,
to a
equivalent
jury
culpable
“train
negligence.
to find
Cf.
Torkelson,
accident.
Intent
or an automobile
v.
wreck”
State
N.W.2d
from the nature
generally
(Minn.Ct.App.1987),
to be inferred
pet.
rev. denied
for
surrounding
(Minn.
circumstances.
1987) (defendant,
of the act and
June
who left
Hardimon, 310 N.W.2d
toilet,
baby
State
newborn
then stuffed her
(Minn. 1981).
wastebasket,
into a
was guilty
culpable
negligence manslaughter). There was no
out,
points
As the dissent
evidence
evidence of other
might
circumstances that
in-
did not establish how
trauma was
of,
indicated
have
took the risk
however,
agree,
flicted. We cannot
inflict, great
rather than intended to
bodily
unknown, simply
the nature of the act was
jury
harm. The
culpable
could have found
exact form of the trauma was
because the
negligence instead
felonious intent
established, if the
testimony
medical
theory
from some
responsi
of diminished
trauma was inflicted and of
established the
bility. The doctrine of
responsi
diminished
sufficient force to be felonious. Even if
however,
bility,
rejected
in State v.
struck,
rather than
was thrown
Bouwman,
(Minn.
328 N.W.2d
height
he
from which would have to have
1982).
been thrown or the force involved would be
sufficient
to establish felonious intent.
recognize
We
the state has the
From the
to Dennis’ small bowel and
intent,
establishing
any
burden
as with
required
medical
as to the force
However,
other element of the offense.
injury,
jury
to inflict that
could have
a case
syn
where the “battered child
great bodily
inferred the intent to inflict
established,
drome” is
the state need not
aggravated
harm which the
assault statute
specific
inju
show the
circumstances of the
conclude, however,
required.
We
Minn,
Loss,
ry causing death. See
could
lacking
not have found such intent
281-82,
(defendant’s
Culpable negligence may include
syndrome
an ele- battered child
are sufficient to
innocence).
ment of intentional conduct.
hypothesis
See State v.
exclude rational
Swanson,
822, Although
pros
Minn.
of these cases are
number
(1976) (pointing gun
degree manslaughter,
at another and ecutions for first
see
intended).
firing,
State,
(Minn.
where death was not
The
second syndrome as a lesser-in- 778 cluded objec- prosecution offense over the defendant’s evidence first as tion, sault, requiring bodily defendant testified intent to inflict facts of shooting. harm). could have found that, gun, armed with a he entered a room charged with two counts occupied by the victim following a heated murder, degree felony requiring one third *8 argument, pointed gun the and in the fired harm, great bodily intentional infliction of victim’s direction. dangerous weapon. the other assault with a 609.225,
Here there was no direct 1 and 2. The evidence of the Minn. Stat. subds. § causing Jurgens’ death, blow Dennis indicate on which only verdict form does not establishing medical evidence Jurgens the force of count was convicted. This omis- sion, however, the trauma. injury analysis. While the extent of the not alter our does may always degree establish the force defendant’s Given the evidence of the intent, involved, jury evidence of the force of the trauma believe the could not have we great exception inflict catchall
distinguished to bod- within the where the wit- the intent only to inflict harm from the intent ily ness admitted the statement and it was dangerous weapon. bodily harm but with produc- with the consistent other evidence that the term instructed The state. In Soukup, ed the State v. “dangerous weapon” included “instru- 498, pet. 501 (Minn.Ct.App.1985), N.W.2d which, it mentality in manner is used or the (Minn. 1985), 30, denied Dec. rev. for used, likely is calculated or to be intended hearsay declarant avail- where the was also great bodily produce or harm.” to death witness, as a the statements were able or feet instructed hands could The admitted, repeated signed were written weapons.” “dangerous See State v. be police, and statements were consistent Bom, 159 N.W.2d testimony. with the medical In State Whiteside, (Minn.Ct. 400 N.W.2d Jurgens sought also she contends App.1987), pet. (Minn. rev. denied degree manslaughter. of first submission 18,1987), the March statements were made (1965) (unin 609.20(2) Minn. Stat. § See to a worker who took notes had social and committing death in the course of tended cir- no reason fabricate. None of those with such force or violence that “crime” present are here. cumstances great bodily is reasonably harm death testimony June Bol’s was consistent with foreseeable). We find no indication Jur- only in that of other witnesses that it was requested gens submission of first established, apparently well known therefore, and, at trial she Jurgens family, the within that Harold may challenge any have waived to the out of much of the town weekend court’s failure to submit it. State v. Mo hearsay Dennis died. The statement was rales, (Minn.1982). testimony in not consistent with Harold’s any event, supreme In court indicated Adams, he admitted his had called when wife State v. (Minn.1980), degree manslaughter she asked him that first but denied to come home. underly Moreover, should be submitted Bol diffi- having when June admitted ing crime is a or a crime intervening misdemeanor Lois culties with against property. no There is indication making possible years, some had the trauma to was a misde story motive to fabricate at trial. meanor assault. statement, eight purportedly made around years Dennis’ death and after fourteen 3. Admission hearsay trial, years did not “cir- before have such
Jurgens contends the
committed
court
guarantees
cumstantial
trustworthi-
reversible error in allowing June Bol to
it should
ness” that
have been admitted.
testify concerning a statement Harold Jur-
804(b)(5).
Minn.R.Evid.
gens
statement,
made to her. This
to the
effect Lois
conclude, however,
called
husband
ad
that the
We
day
before Dennis
him
died
told
hearsay
mission of
statement was
she had
again
boy,
been “at it”
because the
harmless error
state did
was admitted under the
excep-
“catchall”
produce
have to
evidence of the circum
hearsay
tion to the
rule. Minn.R.Evid.
Dennis,
injury
given
stances of
804(b)(5). Although this statement was
syndrome,”
he fit the “battered child
hearsay, Jurgens
double
challenged
has not
the medical
fact that
evidence estab
hearsay
admissibility
of Lois
his
lished that
had been inflicted.
statement to her husband.
argument
has
The state
conceded at oral
Bol’s
its
that June
was critical to
The cases
cited
the state do not
However,
are
this
support
case.
we
not bound
testimony.
admission of the Bol
ignore
plain
In
concession
state of
Ortlepp, 363 N.W.2d
(Minn.1985),
Warren,
prior
the court
evidence.
N.W.
ruled the
state
See State v.
ment of an
(Minn.1988).
available witness admissible 2d 795
*9
inferred
have
from Den-
the
syndrome,
The
could
battered child
by
admitted
defense,
control,
state that he
the
but
constantly bruised
exclusive
nis’
improbability
the
continuously
cause,
almost
of an
Jurgens were
“at
accidental
Lois
event,
testimony
and medical
that the
any
the state of his
death could
it.” In
by
not have
death,
been caused
they
an accident as
could
inferred
body at
have
by
Jurgenses.
described
The battered
abuse of a
very recent
severe nature. See
syndrome
place
child
does not
on a defend-
Schleret,
(jury
dismiss the indictment. Second Circumstantial evidence here was all, manslaughter required adequate, if was not to be sub- to characterize the act causing felony. mitted as a lesser-included offense. The as an intentional hearsay expert testimony admission of a statement was The medical established degree harmless error. The evidence was suffi- of the force caused the that Manslaughter degree position took the the second involves erroneous that lesser-included culpable negligence, offenses intentional conduct were barred the statute of limita- felonious, necessarily whereby appellant the actor "cre- tions de- wished to waive. First risk, consciously gree manslaughter ates an unreasonable takes intentional non- involves an assault, crime, causing great bodily felony including simple chances of death or harm commit- 609.205(1) (1965). § to another.” Minn.Stat. ted "with such force and violence that death of great bodily any person We must also decide whether a first or ably (1965); harm was reason- here; 609.20(2) appropriate instruction was foreseeable.” Minn.Stat. § Adams, any possible finding this instruction was waived (Minn. 1980). inappropriate evidently where the trial court prove degree manslaughter); dence to first the harm done nature of injury and *11 Goblirsch, ex- According 401, 405-07, to these State v. death. 309 Minn. caused by injury 12, (1976) could have been perts (nonaccidental 246 N.W.2d 14-15 great focally with being struck child injuries, defendant’s exclusive control over force fall with considerable or force child, other circumstantial support evidence If the child was object. protruding onto degree manslaughter); inference of first weapon or struck with with a not struck State, v. Schleret 311 N.W.2d blow, fell, but the child unusually forceful (Minn. (in 1981) court, majority view of of allow, how did this come experts as the injuries, nonaccidental defendant’s exclu- appellant the fall Did cause about? child, sive control over and battered child throwing, tripping pushing or striking, syndrome prove degree to first sufficient available, jury the evidence child? On Loebach, manslaughter); cf. nature largely speculate on the left (Minn. 1981) (overwhelm- N.W.2d 62-64 injury. act caused the the human which of ing evidence murder even without bat- history appellant’s on the Evidence syndrome tered child evidence four where simple anticipate as- shows cause abuse month old child suffered severe harm to his prior feloni- is no evidence of sault —there body, head and due to blows or total blows, only suggestion of us- and the ous squeezing body, occurring at least ing weapons is of Robert Jur- period three times over a of several spanked Dennis had been gens that he and weeks).2 quite thing, It is another how- spoon rolling pin or a wooden with ever, proof to contend there of third Although sce- things that nature. ,of degree felony murder in the course falling unexplained nario of a serious and underlying is no of an where there evidence may reasonably preclude an accident great bodily intentional infliction of harm. rationally simple theory, it describes a as- great bodily Evidence harm was suffered appellant consciously risked sault which causing great bodily harm or used is not of intent to cause same.3 death or evidence great bodily syndrome force that death or harm The of battered child cases such series was foreseeable. See Minn. Stat. 609.- beginning with Loss have affirmed the §§ 609.20(2) (1965). 205(1) & proof of man- principle that circumstantial from the slaughter can be inferred evi- repeated battering The evidence of of the present here: evidence of an assault dence diagnosis particu- and the ultimate battering syn- of the presence and the lar trauma to the child consistent with the drome, exclusive along with defendant’s syndrome, together suf- battered child are Minn, Loss, at N.W. control. ficient circumstantial evidence to show 410; Schleret, 848; at 311 N.W.2d 2d at simple death in the course of assault such Minn, Goblirsch, 405-07, 246 N.W. degree first or second man- as to establish have never created 2d at 14-15. The cases slaughter based on an intentional act. See from the same evi- hypothesis of murder Loss, v. State 204 N.W. ag- assault was evidence the (1973) (reasonable dence without 2d inference of intent to cause gravated or committed with battering parent, on based battered enough great bodily harm.4 syndrome, with circumstantial evi- permitted 4.Unexplainably, the trial court 2. There is evidence here that Dennis finding degree murder without to find third years suffered severe bums two before he was degree murder counts was which of two third proven. fatally injured. Although there is evidence this Thus, whether the we do not know inflicted, injury was no evidence was available (1) felony underlying assault found an causing injury. to characterize the act (2) great bodily harm or without intent to inflict dangerous weapon. A with a that intent but observes, majority generally to 3. As the intent is dangerous weapon is on use of a decision based be inferred from the nature the act and on an intention- as one founded flawed as much Hardimon, surrounding circumstances. State v. great is no evidence harm —there al infliction of (Minn. 1981). quite It is employed by appellant weapon to hurt a child; thing particular another to infer a intent where fact, appellant's no evidence there is the nature of the act is unknown. involved use of a had ever abuse of the child failing Supreme has As the Minnesota Court the defense Respondent faults a defendant theory explaining of a made evident for cases where produce evidence through deliberately, consciously killed an- has not Jurgen’s injuries and death person, wheth- appellant. a rational decision on murder other other than events or third cites absence er evidence shows majority likewise depiction requires as- murder a careful than felonious proving other evidence however, underlying leads of the misconduct that improper, child. It is of the sault Adams, finally to proof the defense death. State place the burden Here, for the the circumstantial topic not covered evidence on a *12 Moreover, history appellant’s underlying of on criminal on a evidence evidence state. theory of an of lesser in- the act mandates consideration a compatible is abuse manslaughter. Critically, as cluded homicide of underlying simple assault. observes, other there is no majority the required a The trial court is to submit of the act here as to the nature evidence manslaughter if instruction the evidence If it has fatally the child. that harmed support a of reasonably would conviction all, barely has met its so at the state done lesser at the time is the and same prosecution in a to show murder burden finding guilty that a of not of the such underlying felonious assault. greater justified. be offense would 422, Leinweber, 414, 303 Minn. 228 State v. manslaughter A2. instruction. 120, (1975). N.W.2d 125-26 The United injustice may by be done convict- Grave Supreme States Court reasons: opportu- ing person a of murder without an entitled of- defendant is to a lesser [A] nity important to have an alternative accu- any fense this context or instruction—in case, jury. presented to the In this sation precisely because he should other— question the trial court did not address the exposed be to the substantial risk that a man- required whether the evidence jury’s practice diverge the will from theo- instruction, concluding slaughter evidently ry. one of the of the Where elements appellant instead that could not waive doubt, charged offense remains in but manslaughter. As statute limitations on plainly guilty of some defendant indicates, majority the court’s view on offense, likely jury is to resolve its is in waiver the statute conflict with doubts in favor conviction. Johnson, holding rationale State v. States, 205, 412 212- Keeble v. U.S. United (Minn.Ct.App.1988); see N.W.2d 1997-98, 13, 1993, 93 S.Ct. 36 L.Ed.2d 488, Tupa, also State v. (1973) (emphasis original). (1935) (by discussing N.W. whether limitations, Leinweber, defendant statute of Under lesser waived instructions defense).5 implied manslaughter required court awas waivable are where the Therefore, indepen- upon rationally are called could conclude defend- we that the conduct, dently manslaughter intentional, although determine whether a ant’s Swanson, See, instruction mandated. e.g., felonious. v. State Moreover, dangerous weapon. confusing holding have the benefit of the v. John- in State open possibility son, verdict also leaves that the they could not be confident defendant jury speculated dangerous weapon on a legitimately could waive the statute of limita- specifically found absence of an intent to tions. room Because there was at the time harm, great finding emphatically inflict supports a issue, reasonable differences on the waiver of a consideration of- prosecution understandably could fear obtain- Swanson, 412, See fense. Minn. ing manslaughter verdict be which would 416, 240 82S found barred the statute of Giv- limitations. time, singular en the state of the law at the kept 5. It should in mind be that we are not compare prospective effort to the evidence with dealing any suggestion appellant here with charges understandably contaminated zealously over-charged, that the trial court concern; major this arbitrarily limitations was a conse- jury only submitted to the murder accusations, quence lapse prosecution the time the offense or that the unreason- between ably prosecution. time resisted submission lesser included accu- and the trial, parties sations. At the time of did not (1976) Minn. culpably WHIPPLE, found defendant (jury could have Appellant, Bernice C. pointed and
negligent where defendant advancing at gun who was fired at victim INDEPENDENT SCHOOL him). DISTRICT 621, Respondent, NO. and School Ser- case, how the In this we do not know Employees Respon- vice Local No. The child could have injury was inflicted. dents. an instrument or other been assaulted with abdomen, or the great force directed to his No. CO-87-2094. injured from a fall child could have been simple Appel- Appeals Court of set in motion assault. Minnesota. previously inflicted felonious lant had not May Appellant’s on the child. felonious blows facts; from these intent is not established
they permit rational conclusion appellant committed an intention-
jury that *13 constituting wrongdoing first or second
al
degree manslaughter. permissible guilt arises
A inference
from the factors Loss: defendant’s child, pattern control
exclusive over abuse, prior and nonaccidental cause of Minn, Loss, death. However,
at 410. the inferences rec- Loss
ognizes have never been said to exclude the hypothesis
rational of recklessness. facts, good jury
Given these rea- acquit appellant
son to of third mur- convicting and a
der rational basis her manslaughter. It was error to submit manslaugh-
the case to the without a
ter instruction.
3. Conclusion
Appellant seriously question does convincingly proven
that the state has
criminal conduct associated with the death years ago. history
of her son 23 Given the injuries
of senseless to the the convic- ring
tion of his mother has the of truth.
Appellant is to a fair nevertheless entitled legitimately
trial. She contends that a fair contingent submitting
trial was to the question appellant’s whether con- manslaughter.
duct constituted reasons, appellant
For these is entitled to trial,
a new and I respectfully dissent.