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11/30/90 STATE MINNESOTA v. DAVID FRANCIS BROM

November 30, 1990

STATE OF MINNESOTA, RESPONDENT,
v.
DAVID FRANCIS BROM, APPELLANT



Appeal from District Court, Olmsted County; Hon. Ancy Morse, Judge.

En Banc. Tomljanovich, Justice. Wahl, Justice, dissents.

The opinion of the court was delivered by: Tomljanovich

1. The trial court did not violate appellant's right to due process of law in denying his motion for a change of venue.

2. The trial court did not violate appellant's right to due process of law in precluding psychiatric testimony regarding premeditation from the guilt phase of appellant's bifurcated trial.

3. The evidence of appellant's legal mental illness is not so compelling as to require reversal of the jury's verdict of guilt.

4. The trial court did not abuse its discretion in sentencing appellant to three consecutive terms of life imprisonment.

5. Appellant is entitled to credit against each of his sentences for pretrial detention.

In the early evening of February 18, 1988, Olmsted County sheriff's deputies discovered the bodies of Paulette, Bernard, Diane, and Richard Brom on the second floor of the Brom family home. *fn1 All four individuals had sustained numerous gashes in the head and upper body. Police subsequently found a blood-stained ax in the basement that forensic tests indicated was used to kill all four victims. Tests also revealed the ax handle bore appellant's palm and finger prints.

On February 19, 1988, Rochester police officers arrested appellant in connection with the deaths of his parents and siblings. Because he was 16 years old at the time, appellant was initially charged in the juvenile justice system. After a much-publicized reference hearing and appeal, however, appellant was referred for prosecution as an adult. See In re D.F.B., 433 N.W.2d 79 (Minn. 1988). Primarily in response to adverse publicity generated by his reference hearing, appellant moved the trial court for a change of venue pursuant to Minn. R. Crim. P. 25.02. *fn2 The court denied appellant's motion, but noted both its intention to permit thorough voir dire and its willingness to entertain a renewed motion for a change of venue once jury selection was completed.

Sixty-three potential jurors were interviewed in seven days of voir dire. Each was questioned by counsel regarding the influence of media coverage on her or his pretrial impressions and opinions. All acknowledged some awareness of the press coverage appellant's case received and several admitted predetermined opinions with respect to appellant's guilt. None of those actually empaneled, however, were challenged for cause by either the defense or the state and at the close of voir dire, neither the defense nor the state moved for a change of venue.

Because appellant pleaded both not guilty and not guilty by reason of mental illness, his trial proceeded in two phases as required by Minn. R. Crim. P. 20.02. *fn3 Phase one was limited to a determination of whether appellant was guilty of first or second degree murder in connection with the deaths of his parents and siblings. During phase one, defense counsel made an offer of proof requesting permission to introduce expert psychiatric testimony regarding appellant's capacity to premeditate his actions. *fn4 The trial court denied this request and the defense rested without offering testimony. The jury was instructed that it should not consider evidence of appellant's mental illness in its phase one deliberations and found appellant guilty of four counts of murder in the first degree.

In phase two of his trial, appellant bore the burden of proving his legal mental illness by a preponderance of the evidence. *fn5 The defense presented expert testimony from one psychiatrist who concluded that appellant did not understand that killing his parents and siblings was wrong when he did so and that, therefore, he was legally insane. The state offered expert testimony from four psychiatrists. Of these four witnesses, two concluded that appellant was not legally insane at the time he committed the murders and two did not offer an opinion as to his legal mental illness. All of the experts agreed, however, that appellant suffered some form of mental illness or impairment.

Having been instructed regarding appellant's burden of proving his legal mental illness by a preponderance of the evidence, the jury returned verdicts of guilty as to four counts of murder in the first degree. The trial court then imposed four life sentences, pursuant to Minn. Stat. ยง 609.185 (1990), one for the murder of each victim. The court specified that three of these sentences would run consecutively, while the fourth would run concurrently to the last consecutive term.

ARGUMENT(S)

I. Change of Venue

Appellant claimed the trial court violated his right to due process of law by denying his pretrial motion for a change of venue. He requested this court grant him a new trial.

In State v. Buschkopf, 373 N.W.2d 756 (Minn. 1985), this court held that where no seated juror was challenged for cause and defense counsel exercised only 12 of 15 peremptory challenges, defendant was presumed "satisfied with the jury as selected, and [was without ground] to assert the necessity of a venue change." Id. at 769. Appellant's claim is nearly identical to that raised in Buschkopf. Each of the 63 potential jurors interviewed was questioned by both the defense and prosecution regarding exposure to pretrial publicity and media coverage related to appellant's case. Although all acknowledged some degree of exposure, none of the 15 individuals actually empaneled was challenged for cause on any ground, and in the course of voir dire appellant exercised only 14 of his 15 peremptory challenges. Appellant is therefore not entitled to a new trial.

Moreover, in denying appellant's motion the trial court indicated that it would "certainly entertain another motion for a change of venue," pursuant to Rule 25.02, subd. 4 of the Minnesota Rules of Criminal Procedure, following jury selection. *fn6 Where a defendant is granted leave to renew his motion for change of venue immediately before trial, but declines to do so, he waives "any right he may have had to a change of venue." State v. Knowlton, 383 N.W.2d 665, 669 (Minn. 1986); see also State v. Fratzke, 354 N.W.2d 402, 407 (Minn. 1984) (where defendant is given opportunity to object to jurors after voir dire but does not do so, right to change of venue is waived). In Knowlton, the defendant's motion for a change of venue due to pretrial publicity was denied, but the trial court instructed him that he could renew his motion at the time of trial. The defendant did not do so. Knowlton, 383 N.W.2d at 669. Likewise, the trial court here emphasized that appellant would be permitted to move for a change of venue once jury selection was completed. Appellant, however, made no such motion. He is therefore not entitled to the relief he requests.

We note that the newspaper coverage appellant pointed to in support of his motion appeared 16 months before his trial. We have consistently held that a substantial interval of time between the publicity complained of and the trial date decreases the likelihood of juror prejudice owing to that publicity. See State v. Fratzke,354 N.W.2d 402, 407 (Minn. 1984) (seven-month interval lessened potential for juror prejudice due to adverse publicity); State v. Swain, 269 N.W.2d 707, 720 (Minn. 1978) (lapse of six months decreased likelihood of pretrial prejudice); State v. Hogan, 297 Minn. 430, 437, 212 N.W.2d 664, 669 (1973) (three-month lapse decreased potential for pretrial prejudice due to media coverage). The trial court was therefore correct in giving substantial weight to the interval of time between the publicity appellant identified as prejudicial and the date of his trial.

II. Psychiatric Testimony Regarding Premeditation

Appellant claimed that in prohibiting expert psychiatric testimony from the guilt phase of his bifurcated trial, the trial court precluded his defense as to the element of premeditation and thereby denied him due process of law.

Appellant's claim is not new to this court. In State v. Bouwman, 328 N.W.2d 703 (Minn. 1982), we held expert psychiatric testimony inadmissible with respect to the elements of premeditation and intent. Id. at 706. Although appellant correctly indicates that Bouwman focused almost exclusively on the rationale for precluding such testimony as to the element of criminal intent, we do not read Bouwman to permit a meaningful distinction between intent and premeditation with respect to our prohibition of psychiatric testimony.

In Bouwman, we reasoned that psychiatric testimony is irrelevant as to intent because intent must almost always be inferred from the circumstances surrounding a particular crime. See Bouwman, 328 N.W.2d at 705. Essentially, the fact finder is presented with physical evidence related to a given act and asked to draw on its sensory perceptions, life experiences, and common sense to determine whether that act was indeed intentional. Id. Because psychiatric evidence "does not relate to the physical evidence upon which the jury is to determine the issue of intent," it is irrelevant to that issue and cannot be admitted either to prove or to disprove it. Id. Such evidence only becomes relevant when a criminal ...


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