State v. Murphy

380 N.W.2d 766, 1986 Minn. LEXIS 717

• Court: Supreme Court of Minnesota
• Decided: January 31, 1986
• Docket: C0-84-2128
• Status: Published

Opinions

AMDAHL, Chief Justice.

On September 14, 1984, defendant Mar-shall Donald Murphy was convicted of first degree murder. Essential to the state’s case was evidence of a confession defendant made to his probation officer who was supervising defendant in connection with an unrelated matter. This confession was the subject of extensive pretrial litigation which included a ruling by the United States Supreme Court that the confession was not compelled within the meaning of the privilege against compelled self-incrimination under the fifth amendment to the United States Constitution. Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984). Defendant appeals from the judgment of conviction urging: (1) the confession was obtained in violation of his privilege against compelled self-incrimination under article 1, section 7 of the Minnesota Constitution; (2) the evidence was insufficient to prove rape as required by the felony murder statute under which he was convicted; (3) the evidence was insufficient to prove the homicide took place “while” the rape was occurring; (4) the trial court’s refusal to submit third-degree murder as a lesser included offense denied defendant a fair trial; and (5) the trial court responded improperly to a question from the jury, depriving defendant of a fair trial. We affirm.

On October 29, 1974, Sherrie Cole and her friend, Pam McGee, both teenagers, accompanied defendant and another man, both in their twenties, to a bar in South Minneapolis. Near midnight, Cole, McGee, and defendant left the bar and walked to McGee’s home several blocks away. Leaving McGee there, Cole and defendant walked off toward Cole’s house approximately 12 blocks away.

On November 21, 1974, a bridgeworker found Cole’s nude, partially decomposed body covered with brush on the south bank of the railroad tracks near 29th Street and Cedar Avenue in South Minneapolis. This area is located between McGee’s house and Cole’s house. Cole’s clothing was scattered about the area and no identification was found. A pathologist concluded that manual strangulation was the cause of death and placed the time of death at approximately 3 weeks before the body was discovered. He noted several wounds on her left hand, caused by a sharp instrument, which he characterized as “defensive wounds.” Cole had also been cut on the chin and forehead and her jaw was fractured. The pathologist placed the time of the injuries at or shortly before death. A sexual assault examination was negative; a test for the presence of sperm was impossible due to the condition of the body.

Police officers questioned defendant concerning Cole’s death on three occasions. Although defendant’s roommate had turned over to the police a notebook containing Cole’s identification cards which he found in his and defendant’s attic, they were unable to gather enough evidence on which to charge defendant.

In 1980, defendant pled guilty to a charge of false imprisonment in connection with a prosecution for criminal sexual conduct unrelated to this matter. He was sentenced to 3 years’ probation with Mara Widseth eventually appointed as his probation officer. The terms of probation included that defendant pursue a course of treatment at Alpha House,¹ report to his probation officer as she directed, and “be truthful” with her “in all matters.” Failure to comply with this order could constitute grounds for revocation of probation.

In July 1981, Widseth discovered that defendant had discontinued his course of treatment, but after discussing the matter with him, she decided that treatment was no longer necessary. In September 1981, an Alpha House therapist informed Wid-seth that defendant had admitted during therapy that he had committed a rape and murder in 1974 but was never charged for lack of evidence. After Widseth discussed this information with her superior and determined that she must turn it over to the police, she sent a letter to defendant which read, “To further discuss a treatment plan for the remainder of your probation, I am requesting that you contact me upon your receipt of this letter to set [up] an appointment.”

Defendant met with Widseth in her office in late September. She confronted defendant with the information she had received and he reacted with anger that the therapist had breached his confidence. He said he felt like calling an attorney. Wid-seth responded that he would have to deal with that outside of the office and that her main concern was the possibility that defendant would need further treatment because of the relationship between the two incidents.²

Defendant tried to dissuade Widseth from imposing more treatment on him by maintaining his innocence on the false imprisonment charge and arguing that the rape-murder arose from his heavy drug use which he had since discontinued. He then confessed to the rape-murder in detail. Widseth urged defendant to turn himself in to the police but he refused. She then gave the police this information and defendant was arrested.

At the omnibus hearing, defendant moved to suppress evidence of the confession on the ground that it was obtained in violation of his fifth amendment privilege against compelled self-incrimination under the United States Constitution. The trial court denied defendant’s motion but certified the question to this Court as important and doubtful under Minn.R.Crim.P. 28.03. We reversed the trial court and remanded the case for trial holding, as a matter of federal constitutional law, the probation officer’s failure to warn defendant of his constitutional rights before she questioned him bars the use of his confession at trial. State v. Murphy, 324 N.W.2d at 344.

The United States Supreme Court granted the state’s petition for a writ of certiora-ri and reversed. Minnesota v. Murphy, 104 S.Ct. 1136. The Supreme Court held that the confession was not obtained in a coercive setting and was not compelled within the meaning of the fifth amendment. Id. at 1149. The case was tried, the confession admitted through Widseth’s testimony, and defendant was convicted by a jury of first-degree murder. Defendant appeals from the judgment entered.

1. Defendant’s primary challenge to his conviction is that the evidence of his confession to Widseth is inadmissible under article 1, section 7 of the Minnesota Constitution. This issue is properly before us as our prior ruling rested solely on federal constitutional grounds. State v. Murphy, 324 N.W.2d at 344, 345. The Minnesota Constitution provides, “No person shall * * be compelled in any criminal case to be a witness against himself.” Minn. Const, art. 1, § 7. The provision is identical to the self-incrimination clause in the fifth amendment to the United States Constitution.

Although this court has the power to provide broader individual rights under the Minnesota Constitution than are permitted under the United States Constitution, Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040-41, 64 L.Ed.2d 741 (1980); O’Connor v. Johnson, 287 N.W.2d 400, 405 (Minn.1979), we decline to do so in this case. Our first decision in this case was based entirely on our reading of United States Supreme Court cases construing the federal constitution. See State v. Murphy, 324 N.W.2d at 344, 345. We primarily relied on Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980), in which the Court declared:

The Fifth Amendment privilege against compelled self-incrimination is not self-executing. At least where the government has no substantial reason to believe that the requested disclosures are likely to be incriminating, the privilege may not be relied upon unless it is invoked in a timely fashion.

Id. at 559, 100 S.Ct. 1363-64 (emphasis added). We concluded that “an exception must be made on the facts of this case to the general rule requiring a timely claim of the privilege.” State v. Murphy, 324 N.W.2d at 344.

The Supreme Court reversed our decision and held that “the probation officer’s knowledge and intent have no bearing on the outcome of this case.” Minnesota v. Murphy, 104 S.Ct. at 1145. The Court, therefore, has now made clear, as a matter of federal constitutional law, that the intent or knowledge of the government official has no bearing on whether a self-incriminating statement will be deemed “compelled.”

We have previously noted that since the federal and state self-incrimination constitutional provisions are identical, a United States Supreme Court interpretation of the federal provision is of inherently persuasive, although not compelling, force. State v. Fuller, 374 N.W.2d 722, 727 (Minn.1985).

Our question thus becomes whether the unique relationship between probationer and probation officer as seen in the light of the philosophy of the Minnesota criminal justice system requires us to adopt a view contrary to that expressed by the United States Supreme Court in this very case. We conclude that it does not and we thus hold that the interpretation given by the United States Supreme Court of the privilege against self-incrimination under the federal constitutional provision is also a correct statement of the law under article 1, section 7 of the Minnesota Constitution.

2. Defendant’s second claim is that there was insufficient evidence of rape in the case and he was therefore wrongfully convicted of first-degree felony-murder. In reviewing this challenge, we must interpret the evidence in the light most favorable to the verdict. State v. Parker, 353 N.W.2d 122, 127 (Minn.1984). If we conclude that the jury, “acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that defendant was proven guilty of the offense charged, a reviewing court will not disturb its verdict.” State v. Norgaard, 272 Minn. 48, 52, 136 N.W.2d 628, 632 (1965).

The evidence establishing a rape is substantial. Widseth testified that defendant told her he forced Cole into an alley at knifepoint: “He said that while there in the alley, he raped her. After he raped her he stood up. When he stood up he looked back at her. He said that she looked so scared that he then killed her.” To a layperson, especially one convicted of a sex-related offense, the word “rape” means non-consensual sexual intercourse. Ample evidence corroborates the conclusion that defendant in fact raped Cole within the legal meaning of the word. First, he told Wid-seth that he raped Cole and then “stood up.” Second, all of Cole’s clothing had been removed. Finally, Cole’s body revealed signs of considerable violence, including a fractured jaw, facial lacerations, and defensive-types wounds on her hands.

We note that the statute in effect at the time of Cole’s death required a conviction of first-degree murder for one who “[clauses the death of a human being while committing or attempting to commit rape or sodomy with force or violence.” Minn.Stat. § 609.185(2) (1974) (emphasis added). The evidence clearly supports, at the very least, a finding of an attempted rape.

3. Defendant’s third contention is that the evidence was insufficient to prove he killed Cole “while” he was raping her. Minn.Stat. § 609.185(2) (1974). In Minnesota, the felony-murder rule is applicable where the “felony and the killing * * * are parts of one continuous transaction.” Kochevar v. State, 281 N.W.2d 680, 686 (Minn.1979). In this case, defendant killed Cole immediately following the rape to conceal his crime. This killing falls within the same continuous criminal act as the rape and thus falls within the scope of our felony-murder statute.³ Many states have either limited or abolished the felony-murder rule for policy reasons. See People v. Aaron, 409 Mich. 672, 699-707 & nn. 45-85, 299 N.W.2d 304, 312-16 & nn. 45-85 (1980) (setting forth thorough discussion of this trend). Our legislature, however, has recently expanded the scope of the felony-murder statute by adding several felonies to the first-degree murder statute, Act of April 30, 1981, c. 227, § 9, 1981 Minn.Laws 1009 (codified at Minn.Stat. § 609.185(3) (1984)), and upgrading a killing during a commission of other felonies from third-to second-degree murder. Id., § 10, 1981 Minn.Laws 1010 (codified at Minn.Stat. § 609.19(2) (1984)). Today’s holding conforms with clear legislative intent.

4. Defendant also challenges the trial court’s refusal to submit third-degree murder to the jury as a lesser-ineluded offense. The determination of what, if any, lesser offenses should be submitted to the jury lies with the sound discretion of the trial court, LaMere v. State, 278 N.W.2d 552, 558 (Minn.1979), but where the evidence warrants such an instruction, it must be given. State v. Lee, 282 N.W.2d 896, 899 (Minn.1979). The test to be applied is whether the evidence provides a rational basis for an acquittal on the offense charged and a conviction on the lesser offense. State v. Leinweber, 303 Minn. 414, 422, 228 N.W.2d 120, 125-26 (1975). Therefore, proof of the elements which differentiate the two crimes must be sufficiently in dispute so that a jury may make this distinction. State v. Adams, 295 N.W.2d 527, 532 (Minn.1980).

Defendant argues that the jury could have found he engaged in indecent liberties with Cole, not rape, which would constitute an element of third-degree felony-murder. Minn.Stat. § 609.195(2) (1974). As noted above, the evidence clearly supports a finding that defendant raped or attempted to rape Cole with force or violence and defendant offered no proof of mere sexual contact to rebut this uncontro-verted evidence. See State v. McDonald, 312 Minn. 320, 321, 251 N.W.2d 705, 706 (1977). The trial court properly denied defendant’s request.

5. Defendant’s final claim is that he was denied a fair trial because the trial court erred in responding to a question from the jury during deliberations. In its final instructions, the trial court said, “The statutes of Minnesota provide that whoever causes the death of a human being while committing or attempting to commit rape or sodomy with force and violence is guilty of murder in the first degree.” The court did not define the term “while.” After deliberating a short time, the jury sent the court a question asking for a definition of “while.” Over defendant’s objection, the court instructed the jury, “This means defendant’s acts were part of one continuous criminal act.”⁴

It is well established that the trial judge may, in his discretion, give additional instructions in response to a jury’s question on any point of law. Minn.R. Crim.P. 26.03, subd. 19(3). The court has the discretion to decide whether to amplify previous instructions, reread previous instructions, or give no response at all. Id. The only real limitation placed on the trial court is that the additional instruction may not be given in such a manner as to lead the jury to believe that it wholly supplants the corresponding portion of the original charge. Strobel v. Chicago, Rock Island & Pacific Railroad Co., 255 Minn. 201, 204-05, 96 N.W.2d 195, 199 (1959). Naturally, it is preferable that the court deliver a complete and concise original charge, but if a jury is confused, additional instructions clarifying those previously given may be appropriate since “the interests of justice require that the jury have a full understanding of the case and the rules of law applicable to the facts under deliberation.” Stayberg v. Henderson, 277 Minn. 16, 19, 151 N.W.2d 290, 292 (1967).

Both instructions given in this case were correct statements of the law. The second instruction was merely a clarification of the first. While the better practice would have been to include the clarifying instruction in the final charge, we do not believe that the instructions to the jury as given created a prejudicial error. See Rauk v. Void, 268 Minn. 56, 63, 127 N.W.2d 687, 692 (1964). Even had defense counsel argued the effect of the clarifying instruction, the outcome would have been the same.

Affirmed.

WAHL, J., dissents.

1 . Alpha House is a treatment center for sex offenders.

2 . At the omnibus hearing, Widseth testified that she understood defendant’s statement not as an immediate request for counsel, but as a means of recourse against the therapist for the breach of defendant’s confidence. Defendant, however, testified that he believed he should have an attorney present. Even assuming defendant’s version to be true, since the confession was not obtained during a custodial interrogation, Minnesota v. Murphy, 104 S.Ct. at 1144; State v. Murphy, 324 N.W.2d 340 at 344, and formal judicial proceedings had not been initiated, the questioning by Widseth did not violate defendant’s right to counsel under either the fifth or sixth amendments. See United States v. Fitterer, 710 F.2d 1328, 1333 (8th Cir.1983); City of Burnsville v. Marsyla, 349 N.W.2d 829, 830 (Minn.1984).

3 . Most jurisdictions that recognize the felony-murder doctrine support the view that a killing by one trying to escape from or conceal a felony where there has been no break in the chain of events between the felony and the killing is within the scope of the felony-murder rule. E.g., Bizup v. People, 150 Colo. 214, 371 P.2d 786, cert. denied, 371 U.S. 873, 83 S.Ct. 144, 9 L.Ed.2d 112 (1962); Parson v. State, 222 A.2d 326, 332 (Del.1966), cert. denied, 386 U.S. 935, 87 S.Ct. 961, 17 L.Ed.2d 807 (1967); State v. Perry, 161 Mont. 155, 505 P.2d 113 (1973). Thus, even though the underlying felony may be complete, the felony-murder rule may still apply. E.g., State v. Lashley, 233 Kan. 620, 664 P.2d 1358 (1983); Haskell v. Commonwealth, 218 Va. 1033, 243 S.E.2d 477, 483 (1978).

4 . This was an instruction originally requested by the state as a part of the final jury instructions. The trial court, however, denied the request at that time. Defense counsel asserted in his closing argument that the jury should define "while" as “during" or "at the time."