State v. Leja

684 N.W.2d 442, 2004 Minn. LEXIS 475, 2004 WL 1688191

• Court: Supreme Court of Minnesota
• Decided: July 29, 2004
• Docket: C9-02-863
• Status: Published

Opinions

OPINION

ANDERSON, PAUL H., Justice.

Tina DeAnn Leja challenges her 210-month sentence for second-degree felony murder. The court of appeals concluded that the district court did not abuse its discretion when it departed upward from the 150-month presumptive sentence established by the Minnesota Sentencing Guidelines. Because we conclude that Leja did not commit the underlying offense of second-degree felony murder in a particularly serious way, we reverse and modify Leja’s sentence to the presumptive sentence of 150 months.

We begin by recognizing that the murder of Bobby Dee Holder was particularly gruesome. With little or no provocation, Darnell Smith and his younger brother Chaka assaulted and murdered Holder in Darnell’s residence and then dismembered his body. Darnell then directed Andre Parker and appellant Tina DeAnn Leja to dispose of Holder’s body parts. For his central involvement in Holder’s murder, Darnell Smith was tried and convicted of first-degree premeditated murder and was sentenced to imprisonment for life without the possibility of release. In September 2003, we upheld Darnell Smith’s conviction for first-degree premeditated murder. State v. Smith, 669 N.W.2d 19, 30, 35 (Minn.2003). Chaka Smith pleaded guilty to second-degree felony murder and was sentenced to 20 years imprisonment. Andre Parker cooperated with the authorities, pleaded guilty to aiding an offender after the fact, and was sentenced to 5 years imprisonment.

Leja was Darnell’s girlfriend and the person who invited Holder to Darnell’s residence on the evening of the murder. At Darnell’s direction, two days after the murder she helped dispose of Holder’s body parts. Based on this conduct, Leja was tried and convicted of second-degree felony murder and was sentenced to 210 months, or 17 and one-half years imprisonment. The sentence Leja received represented an upward departure of 60 months, or 5 years, from the presumptive sentence for second-degree felony murder. The question presented by this appeal is whether, under the Minnesota Sentencing Guidelines, Leja’s conduct justifies this upward sentencing departure of 60 months.

Leja met Darnell Smith in 1998 while she was employed as a guard at the Still-water State Prison where Smith was serving a sentence for criminal sexual conduct with a child. Leja and Smith developed a prohibited romantic relationship and, as a result, Leja’s employment was terminated in October 1999. After termination of her employment, Leja continued her relationship with Smith by writing him love letters while he served the remainder of his sentence. After Smith’s release in May 2001, the relationship continued, but took a turn for the worse, with Smith controlling, beating, and humiliating Leja.

In late June 2001, Holder arranged to sell some tire rims to Smith. Holder and his friend Mauricio Jones then met Leja in a McDonald’s parking lot, where Leja paid for the rims. Jones testified that on the way to McDonald’s, Holder stated “he would like to have sex with [Leja].” While Leja was meeting with Holder, Smith talked to Holder on Leja’s cell phone, insisting that Holder install the rims on his car. Jones testified that Holder did not say anything sexual while he was in Leja’s presence, but that on the way back from McDonald’s, Holder said “he could have sex with her.” Leja testified that she was not interested in Holder, did not flirt with him, and that Holder did not express an interest in her. Jones also testified that Holder was nervous about being around Smith and did not trust him. While at Smith’s residence later that same evening, Holder started to install the rims, but did not finish because he needed some other tools.

On July 5, Leja visited a girlfriend and talked about her troubled relationship with Smith. Leja subsequently went to Smith’s residence after being told by Smith that she was supposed to be there. Smith became angry at Leja for visiting her friend, took her car keys, and ordered her onto the bed. Leja testified that Smith then hit her with an alarm clock, which caused her to bleed. As was his standard practice, Smith took Leja’s cell phone, checked it for incoming calls, and questioned her about the source of certain calls she had received, including one from Holder. Leja lied to Smith, telling him that Holder’s number was a wrong number. For the next hour, Smith forced Leja to remain on the bed. When Holder subsequently called Leja’s cell phone, Smith gave the phone back to Leja to answer. Leja testified that Holder was calling Leja to say that he wanted to pick up some tools he had left at Smith’s residence.

The state’s key witnesses to the subsequent events of July 5 were Smith’s younger brother Ramon and Ramon’s girlfriend, Katrina Valley. Ramon and Valley testified that they drove to Smith’s residence around 9:30 or 10:00 p.m. They entered the residence and were present in Smith’s bedroom when Leja received the call from Holder. Valley testified that she saw Leja in the bedroom and saw Smith sitting on the bed cleaning a handgun. According to Valley, when Leja received the call from Holder, Smith “scooted up behind” Leja and whispered in her ear, “Tell him I don’t live here. That this is your house.” Valley then heard Leja tell Holder, “He’s not here right now. You can come over.” Valley testified that Leja appeared nervous. Valley stated that shortly after this telephone call, she and Ramon left the residence.

Ramon testified that when he entered Smith’s bedroom, Leja was talking on her cell phone. Ramon testified that he saw Smith whispering in Leja’s ear as she talked on the phone, and heard Leja telling the caller, “He’s not here. This is my house. You can come over now.” Ramon also testified that Smith said that he wanted Holder to come over because he thought Holder wanted to have sex with Leja and that he used Leja to lure Holder to the residence. Ramon testified that Smith did not say that Leja lured Holder to come over with the promise of sexual favors. Both Ramon and Valley said that Smith was holding, cleaning, or loading a large handgun during the call.

Ramon stated that after the call from Holder, Smith told him, in the presence of Leja and Valley, “That was the guy that was putting on my rims. I want you to stay here and help me fuck him up”— meaning fight him. According to Ramon, Leja heard this request and had no reaction to it. But Valley testified that she personally never heard Smith ask Ramon to help with a fight. Ramon testified that he and Valley then “staged an argument” in order to get out of the situation.

Holder subsequently arrived at the residence where Smith’s bedroom was located. Leja greeted him at the front door, while Smith and his younger brother Chaka, who had arrived shortly before, hid from Holder. After Holder entered Smith’s bedroom to retrieve his tools, Smith came into the bedroom, grabbed Holder, and he and Chaka began hitting him. Leja testified that Holder struggled, making it to the front door of the residence, but then she heard two shots, and saw the two men drag Holder’s body into the bedroom. Leja testified that she witnessed Holder’s murder, but did not participate in it. Rather, she said that she was curled up in a ball on the bed when the shooting took place and was crying. She testified that she fell asleep with Holder’s body still lying on the floor of Smith’s bedroom. Ramon testified that Smith told him that after Holder had died, Chaka held Holder’s body while Smith cut it up. Leja testified that she did not know how Chaka happened to be at the residence at the time of the murder.

The state’s key witness with respect to the disposal of Holder’s body parts was Andre Parker. While Parker was getting a cigarette from Smith on July 6, Smith showed him Holder’s body parts which were stored in a cooler. According to Parker, Smith put his hand on a gun which was tucked in his waistband and told Parker he wanted him to help get rid of the body. Parker testified that he was afraid that Smith would kill him if he did not comply with Smith’s directive. After an unsuccessful attempt to find a disposal site for the body in Saint Paul, Smith had Parker help him put the cooler containing Holder’s body parts into Leja’s car.

The next day, July 7, Smith told Leja to get rid of Holder’s body and that Parker would be watching her. Parker testified that while they were preparing to dispose of the body, Smith would not let Leja get too far out of his sight and that Leja was often crying. In a videotaped statement made to the police, Parker said the following when asked about the scene when Smith showed him the body parts in the cooler:

Q: Was Tina there? How did she look?

A: Very well dressed, makeup done, all that shit, and still looked like she wanted to fuckin’ throw up. Even though she was well groomed and all that she looked like she wanted to jump out of her fuckin’ skin. Then I guess by the time she figured out that he had brought me into this shit she wanted to fuckin’ cry. As soon as we got a little second alone she was like, “I can’t believe they did, that he got you in this shit.”

Smith told Parker to drive Holder’s car and follow Leja, who would be driving her own car. Parker and Leja then set off for Wisconsin, where they left Holder’s car at a park-and-ride lot in western Wisconsin. Parker testified that after abandoning Holder’s car, he got into Leja’s car and they drove together to her father’s Wisconsin farm. Along the way, Leja described how Smith had “forced her to manipulate him, Mr. Holder, into coming to his residence,” and how Smith had assaulted and then shot Holder. Parker testified that Leja cried for a while before she told Parker what had happened.

Leja corroborated much of Parker’s testimony about the drive to Wisconsin. Leja testified that she and Parker drove to her father’s farm to dispose of Holder’s body. Once there, they attempted to bury Holder’s torso. Leja said that she picked a spot close to the house so that her father would discover the torso. In fact, her father discovered Holder’s torso the next day. Parker testified that Leja was crying when they buried Holder’s torso. Leja testified that she disturbed things in the garage and left hair and fingerprints so that it was obvious that she had been at the farm.

After burying Holder’s torso on the farm, Leja and Parker drove north to Superior, Wisconsin, and returned to Minnesota by way of Duluth, and then drove south on Interstate 35. At Parker’s direction, Leja exited the interstate when they were 50 or 60 miles south of the Black Bear Casino, which is located in Carlton, Minnesota, a town about 20 miles south of Duluth. After heading east for less than one mile, Parker exited the car and cut the fingers off of Holder’s hands. The two then continued driving until they reached a driveway on a dirt road located in a wooded area. At this point, Parker exited the car again and threw Holder’s remaining body parts into the woods. Parker and Leja subsequently returned to Leja’s Woodbury, Minnesota residence, cleaned the car, and then showered. When asked about Leja’s reaction when they were disposing of Holder’s body parts, Parker made the following statement to police:

This bitch is shook, (imitating Tina crying) This bitch is fucking shaking like a leaf. You (inaudible) cigarettes. We (inaudible) to do all this. I bet you (inaudible) at least 200 mother fuckin’ cigarettes flew by until we finally [got] to that fuckin’ house. By the time we got (inaudible). We had to stop and buy some more fuckin’ cigarettes and we had already smoked about five or six packs between two people. She was shook, she cried the whole fuckin’ time here, (imitating Tina crying and talking). I don’t believe this, I don’t know why he did this, it wasn’t suppose to be like this, (inaudible) he doesn’t love me, I thought he (inaudible), (inaudible) mother fuckin’ kill me (inaudible).

About ten days later, on or around July 17, Leja contacted an old boyfriend who lived in Montana and she and Smith eventually drove to Montana, staying with the friend for half a day. Leja told her friend that she was afraid, and as Leja hoped, her friend suspected something was wrong, did some checking on the internet, and called the police the next day. After returning to Saint Paul, Smith decided to go to Mississippi for a funeral and took Leja with him.

In August, Smith and Leja were arrested by police in Mississippi and returned to Minnesota to stand trial. Smith was charged with first-degree murder, tried by a jury, found guilty, convicted, and sentenced to imprisonment for life without the possibility of release. Chaka Smith was also arrested for the murder and he pleaded guilty to second-degree felony murder and was sentenced to 20 years imprisonment.

Based on her involvement with Holder’s murder, Leja was charged with second-degree felony murder, accomplice-after-the-fact, second-degree assault, and conspiracy to commit second-degree assault. At trial, Leja admitted that she did not warn Holder that Smith was angry, nor did she ask Smith or his brother Chaka to stop assaulting Holder, testifying that she was “paralyzed.” Neither did she call the police on the trip to Wisconsin, although she had a cell phone and was at some point alone in her car. Leja admitted that she did not tell her family about her knowledge of Holder’s body parts and that she lied to police when they questioned her.

At the close of her trial, Leja requested instructions on both duress and necessity. She argued that there was evidence from which the jury could conclude that she was under duress from Smith on July 5, 2001, and that her actions two days later in helping dispose of Holder’s body were justified by necessity. The district court instructed the jury on the defense of duress, but declined to give an instruction on necessity.

The jury found Leja guilty of second-degree felony murder, accomplice-after-the-fact, and second-degree assault, and the district court entered convictions on all three counts. The court then imposed a sentence of 210 months for the second-degree felony murder conviction, an upward durational departure of 60 months from the presumptive sentence. The court cited the concealment of Holder’s body and Leja’s “abuse of a position of trust” as aggravating factors supporting the departure. The court also imposed a consecutive, although stayed, sentence of 81 months for the accomplice-after-the-fact conviction.

Leja appealed all three convictions, as well as the upward sentencing departure associated with the second-degree felony murder conviction. State v. Leja, 660 N.W.2d 459 (Minn.App.2003). The court of appeals vacated the accomplice-after-the-fact conviction. The court held that because the accomplice liability imposed under Minn.Stat. § 609.05 for the first offense — second-degree felony murder— makes Leja a principal in the commission of that offense, she cannot also be guilty as an accomplice-after-the-fact. Leja, 660 N.W.2d at 465, 467. The court affirmed both the second-degree felony murder conviction and the upward durational departure. Id. at 466-67.¹ The court held that, because the departure “is adequately supported by the aggravating factor of concealment of the body,” it did not need to reach Leja’s argument that she was not in a position of trust as to Holder. Id. at 467.

Leja petitioned this court for further review of (1) the second-degree felony murder conviction; (2) the assault in the second-degree conviction; and (3) the upward durational departure for the second-degree felony murder conviction. We granted review as to the upward durational departure issue only. While the state advanced “abuse of position of trust” as an aggravating factor at sentencing, it did not maintain that position either in the court of appeals or in this court. Therefore, the only issue before us is whether under the Minnesota Sentencing Guidelines, Leja’s aiding in the concealment of Holder’s body parts provides an adequate ground to support the district court’s determination to depart upward.²

The purpose of the Minnesota Sentencing Guidelines is to establish rational and consistent standards in order to reduce sentencing disparity. Minnesota Sentencing Guidelines I. The Guidelines seek to ensure that sanctions following conviction of a felony are proportional to the severity of the offense of conviction and the extent of the offender’s criminal history. Id. Minnesota Sentencing Guidelines II.D.2(b) sets forth “a nonexclusive list of reasons which may be used as reasons for departure.” Minnesota Sentencing Guidelines cmt. II.D.201; State v. Spain, 590 N.W.2d 85, 89 (Minn.1999). The reasons for departure from the guidelines “are intended to describe specific situations involving only a small number of cases.” State v. Schantzen, 308 N.W.2d 484, 487 (Minn.1981). Despite the fact that the list of factors is nonexclusive, “[t]he purposes of the sentencing guidelines will not be served if the trial courts generally fail to apply the presumptive sentences found in the guidelines.” Spain, 590 N.W.2d at 88.

We have said that “[t]he general issue that faces a sentencing court in deciding whether to depart durationally is whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.” State v. Cox, 343 N.W.2d 641, 643 (Minn.1984). We review departures from presumptive sentences “under an abuse of discretion standard, but there must be ‘substantial and compelling circumstances’ in the record to justify a departure.” State v. Griller, 583 N.W.2d 736, 744 (Minn.1998) (quoting Rairdon v. State, 557 N.W.2d 318, 326 (Minn.1996)); Minnesota Sentencing Guidelines 1(4). “This court has discretion in individual cases to modify the sentences of an appealing defendant if that appears to be in the interests of fairness and uniformity.” State v. Vazquez, 330 N.W.2d 110, 112 (Minn.1983); Minn.Stat. § 244.11, subd. 2(b) (2002).

The state argues that State v. Ming Sen Shiue, 326 N.W.2d 648 (Minn.1982), holds that concealment of a body alone is an aggravating factor sufficient to justify an upward durational departure. In Shiue, we noted that the district court cited six grounds for departure. Id. at 654. We “particularly note[d] that the concealment was an aggravating factor to be considered,” but also noted that “[cjoncealment has never been considered by this court as an aggravating factor. It has been found to be an appropriate consideration in other jurisdictions” and “is appropriate here.” Id. at 655. The Shiue court particularly focused on the fact that Shiue “negotiated an agreement to disclose the whereabouts of the body in exchange for an agreement to forego prosecution for first degree murder.” Id.

Less than two months after the Shiue decision was handed down, we decided State v. Schmit, 329 N.W.2d 56 (Minn.1983). In a footnote in Schmit, we said:

In justifying its departure in sentencing, the trial court relied, in part, upon the manner in which defendant disposed of the victim’s body. Because defendant made no effort to bargain with information concerning the location of the body, his concealment of the body does not operate as an aggravating factor in sentencing.

Id. at 58 n. 1. Leja contends that the Schmit footnote provides that concealment of the body is not an aggravating factor when the defendant makes no effort to bargain with information concerning the location of the body. The state argues that this footnote was dicta and thus not essential to the determination of Schmit, as other aggravating factors were recognized as sufficient to support the double upward durational departure in that case.

After the Schmit decision, it was not until 1998 that we reviewed another sentence departure involving concealment of a body as an aggravating factor. In State v. Folkers and State v. Griller, we affirmed sentencing departures based in part on the fact that the defendant had concealed the murder victim’s body — even though in both cases there had been no effort to use the body’s location to negotiate a more favorable charge. Folkers, 581 N.W.2d 321, 327 (Minn.1998); Griller, 583 N.W.2d at 744 n. 9. In both decisions, we cited Shiue, but not Schmit. In its decision below, the court of appeals noted that since Schmit, we have “affirmed departures and cited concealment of the body even where there was no attempt to use the information for bargaining purposes.” Leja, 660 N.W.2d at 467 (citing Griller and Folkers). We note, however, that the upward durational departures in both Folkers and Griller were based on multiple aggravating factors, of which concealment of the body was but a single factor. We have not decided a case where concealment, standing alone, was cited approvingly as a sufficient aggravating factor supporting an upward departure. Additionally, in both Folkers and Griller, the defendant who concealed the body was the same person who committed the underlying murder.

In Shiue, we concluded that the use of concealment as an aggravating factor is justified by two reasons — trauma to close relatives and independent policy concerns. Shiue, 326 N.W.2d at 655. Regarding the policy concerns, we expressed the concern that if concealment was not considered an aggravating factor, the accused would be able to use the concern of the victim’s family to negotiate a favorable plea agreement in return for disclosing the location of the victim’s body. Id. These independent policy concerns are not present here. There is no evidence in the record that Leja attempted to bargain with the authorities using her knowledge of where Holder’s body was buried.

The aggravating factor of particular cruelty looks to whether “[t]he victim was treated with particular cruelty for which the individual offender should be held responsible.” Minnesota Sentencing Guidelines II.D.2(b)(2) (emphasis added). Here, it is undisputed that Leja was more than an innocent bystander. But she was not the person who assaulted and shot Holder or dismembered his body. Unquestionably, Holder’s murder was a gruesome crime and there can be no dispute that as a result Holder and his family were treated with particular cruelty. However, that cruelty was meted out by the Smith brothers, not Leja. Darnell Smith hit Holder with the flashlight. Chaka Smith blocked Holder’s means of escape by standing in the doorway and putting his hands on the walls. Darnell Smith shot Holder and ignored his pleas for mercy. Both Smith brothers dismembered Holder’s body, and it was Darnell who directed Parker and Leja to conceal Holder’s body. There is no evidence in the record which suggests that when Leja lured Holder to Smith’s residence, she knew that Holder would be murdered, let alone that she would be directed to conceal his body. There is no evidence in the record that Leja felt any ill-will toward Holder or intended to bring about his demise.

As we analyze the specific facts of this case, we are especially mindful that the standard for departure requires that the aggravating factors be “substantial and compelling.” Griller, 583 N.W.2d at 744. Substantial and compelling circumstances are those which demonstrate that the “defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.” Cox, 343 N.W.2d at 643. Here, it is critical that we specifically focus on Leja’s conduct and her second-degree felony murder sentence and not be unduly distracted by the conduct of the Smith brothers. While reprehensible and regrettable, we conclude that Leja’s actions fail to reach the threshold of substantial and compelling circumstances needed to justify an upward durational departure. The sentencing guidelines lose all meaning if this standard is not adhered to by the district courts. See Spain, 590 N.W.2d at 88.

Based on the facts of this case, we cannot conclude that Leja’s conduct constituted anything other than a typical offense of second-degree felony murder. We are mindful of the fact that typical does not mean minimal. It is quite possible that a typical offense, were we able to define it, would involve conduct much more extreme than the minimum conduct required to violate the applicable statute. Regardless, we conclude that a sentence of 210 months, or 17 and one-half years, is disproportionate to the offense that Leja committed. See State v. Norris, 428 N.W.2d 61, 71 (Minn.1988) (holding that the sentence imposed by the district court unduly exaggerated the criminality of defendant’s conduct). Leja’s participation in the concealment of Holder’s remains, without more such as her bargaining with the authorities, does not support an upward durational departure. See Shine, 326 N.W.2d at 655. Therefore, we hold that the distinct court abused its discretion when it departed upward from the presumptive sentence established by the Minnesota Sentencing Guidelines. Accordingly, we reduce Leja’s sentence to 150 months, the presumptive sentence for second-degree felony murder.

Affirmed as modified.

1 . Although raised in Leja’s brief to the court of appeals, that court apparently did not address the conviction for aiding assault in the second degree. See State v. Leja, 660 N.W.2d 459 (Minn.App.2003).

2 . In Apprendi v. New Jersey, the United States Supreme Court held that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). On June 24, 2004, after we heard oral argument in the present case, the Court held in Blakely v. Washington that "the 'statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts re-fleeted in the jury verdict or admitted by the defendant.” — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403, 2004 WL 1402697 (2004). Although Blakely was decided after oral argument in this case, Apprendi has been the law of the land since 2000. Nevertheless, Leja has not challenged her sentence on Apprendi grounds and has thus waived any such objection. Accordingly, we decide this case on the basis of established Minnesota sentencing jurisprudence and not based on the principles articulated in Apprendi/Blakely.