Appeal from District Court, Hennepin County; Hon. Steven Lange, Judge. District Court File No. 92086290
Petition for Review Denied June 15, 1994,
Considered and decided by Klaphake, Presiding Judge, Short, Judge, and Davies, Judge.
The opinion of the court was delivered by: Short
Where a defendant testifies he shot the victim because the victim was attempting to forcibly enter his home, the defendant is entitled to a self-defense instruction which includes the statutory language authorizing the taking of life to prevent the "commission of a felony in the actor's place of abode." Failure to give "defense of dwelling" instruction was reversible error where an eyewitness testimony did not contradict defendant's testimony.
Thomas McCuiston appeals from a judgment of conviction and sentence for second degree felony murder. Minn. Stat. § 609.19(2) (1992). We reverse and remand for a new trial.
While standing in his porch doorway on a November evening, McCuiston shot a neighbor in the head at close range with a pistol grip shotgun. Earlier that evening, the victim's girlfriend telephoned the police because the victim was drunk, angry about money owed them by McCuiston, and talking about starting a fight with "this drug house across the street." McCuiston lived with his five-year-old son in the upstairs part of a triplex across the alley from the victim. There was a crack house on McCuiston's block, and McCuiston had purchased the shotgun to protect his son from crime in the neighborhood.
McCuiston claimed he shot the victim in self-defense. He was out walking with his son when the victim verbally accosted them, yelling racial epithets and threatening to chase McCuiston out of the neighborhood. McCuiston is a five foot, six inch tall, 126-pound African American; the victim was a six foot, one inch tall, 178-pound Caucasian. McCuiston gave his son the house keys and told him to run home. McCuiston continued to walk home with the victim yelling at him.
At his house, McCuiston climbed the stairs to the porch, entered, and locked the porch screen door. He was unable to lock the storm door because his son had the keys. McCuiston went upstairs to make certain his son was safe. When he heard someone pulling and kicking on the downstairs screen door, he grabbed his shotgun, walked downstairs, and called to his neighbor to telephone the police. McCuiston did not have a telephone at his residence.
On the porch, the shouting continued. The victim was yelling that he was not afraid of McCuiston; McCuiston was yelling for someone to call the police. McCuiston said he shot the victim as the victim made a gesture to enter McCuiston's house. The victim's outer jacket was found in McCuiston's front lawn.
A passerby witnessed the confrontation and testified at trial that (a) McCuiston was standing inside his doorway, holding the screen door open, and hollering for someone to call the police; (b) the victim approached McCuiston, touched McCuiston's shoulder, and retreated; (c) McCuiston raised his shotgun, but did not fire, and shouted for someone to call the police; (d) the victim continued to yell and gesture at McCuiston; and (e) as the victim again moved towards McCuiston in the doorway, McCuiston fired his shotgun.
McCuiston requested a modified self-defense instruction, which included language from both the statute and the pattern jury instruction authorizing deadly force to prevent the commission of a felony in a defendant's home. The trial court denied McCuiston's request, and gave a self-defense instruction excluding this "defense of dwelling" language. The jury acquitted McCuiston of second degree intentional murder, but found him guilty of second degree felony murder. The trial court sentenced McCuiston to an executed term of 180 months, an upward departure of 30 months ...