1. The warrantless search that resulted in the discovery of the victim's body did not violate the Fourth Amendment because it was conducted by a non-government agent for personal reasons.
2. Appellant acquiesced in trial counsel's concessions with respect to appellant's intent to kill the victim.
3. The trial court did not abuse its discretion when it refused to grant a mistrial based on improper questions asked by the prosecutor.
Heard, considered, and decided by the court en banc.
The opinion of the court was delivered by: Page, Justice.
Appellant James John Jorgensen was found guilty of one count of first-degree premeditated murder, in violation of Minn. Stat. § 609.185(a)(1) (2002), after a jury trial in Hennepin County District Court, for the death of his fiancée, Shelby Davis. He was found not guilty of one count of second-degree intentional murder. Jorgensen was sentenced to life imprisonment and ordered to pay restitution. In this direct appeal, Jorgensen challenges the legality of the search that resulted in the discovery of Davis's body. He also claims that he was denied effective assistance of trial counsel when his counsel, without his consent, repeatedly told the jury during his trial that, while he intended to kill Davis, the killing was not premeditated. He further claims that the trial court abused its discretion in refusing to grant a mistrial after the state examined a police investigator regarding whether Jorgensen had a history of violence. Finally, Jorgensen raises a number of pro se issues. We affirm.
Jorgensen and Davis met in 1991, began dating, and started living together shortly thereafter. Jorgensen was in the trucking business and Davis was a graphic design artist. In 1996, they built a home together in Minnetrista, Minnesota. Evidently, before they met, Jorgensen was a cocaine user. At some point after meeting Davis, he stopped using cocaine, but then started again in 1997. At the time of Davis's murder, Jorgensen was smoking crack cocaine daily. His addiction caused him to lose his business and steal money from Davis, as well as sell their personal property in order to support his cocaine habit.
On Thursday, March 22, 2001, after Davis left for work, Jorgensen went to a pawn shop and pawned a computer and stereo speakers from their home. He bought crack cocaine with the proceeds. Jorgensen smoked the crack as he drove home and, once at home, continued smoking it for the remainder of the afternoon. Expecting Davis to be upset with him for selling their possessions to buy drugs, Jorgensen hid in the basement behind the stairs before Davis arrived home. When Davis arrived home at approximately 7:30 p.m., Jorgensen could hear her walking around the house calling his name. By the tone of her voice, he knew she was angry with him, and he continued to hide. According to Jorgensen, he grabbed an antique sewing bobbin made of wood with brass ends when he "heard her coming down the stairs and hollering my name and sounding upset." He struck her once on the head with the bobbin and she fell to the ground. Jorgensen then straddled her with his knees and, as she apparently tried to defend herself, he hit her two more times with the bobbin, knocking her unconscious. Finally, Jorgensen placed his hand over Davis's mouth and nose for approximately two minutes until she stopped breathing. After she stopped breathing, Jorgensen laid on Davis's body for half an hour, cleaned himself up, then wrapped her body in blankets and carried it into the garage. He also took the diamond engagement ring that he had given her off of her finger. He spent the next several days using cocaine that he purchased with proceeds from pawning the engagement ring for $400, forging Davis's checks for approximately $1,000, and selling his car for $200. He was arrested during a drug raid in Minneapolis on March 31.
A. Discovery of Davis's Body
On Monday, March 26, Jorgensen called Davis's employer and indicated that Davis would not be coming to work that day because she had gone to North Dakota to take care of a sick aunt. When Davis did not show up for work on Tuesday, March 27, her supervisor contacted Davis's mother to find out why Davis had not reported to work. Upon learning that Jorgensen had said that Davis was in North Dakota caring for a sick aunt, Davis's family became concerned for Davis's welfare because she did not have an aunt in North Dakota. As a result of that concern, Davis's family contacted the Minnetrista Police Department and reported her missing. That same day, the police began conducting welfare checks at the home shared by Davis and Jorgensen in an attempt to establish contact with someone knowing of Davis's welfare, but never found anyone home.
On the evening of March 28, at approximately 7:00 p.m., Sharon Strickland, Davis's sister, went to the house in search of Davis. According to Strickland's testimony, she went to the house to obtain information about Davis's disappearance. Before going to the house, Strickland talked with her mother, her son, her attorney, and one of her friends about breaking into the house. Her son, who had earlier replaced the lock on the house's garage door, told her that door would be the easiest to use for the break-in. When she arrived at the house, Strickland waited to see if anyone would come home and did not break into the house immediately.
At approximately 9:30 p.m., two Minnetrista police officers arrived at the house to check on Davis's welfare and found Strickland sitting in her car. When asked who she was and why she was at the house, Strickland explained that she was Davis's sister, that she was concerned about Davis, and that she intended to go into the house because she thought something was wrong. The officers conducted the welfare check, found no one home, and told Strickland there was little more they could do. Strickland told the officers that she was going into the house anyway. In response, the officers informed Strickland that they could not be a part of any search, but that they would continue to investigate. Strickland told the police that she was going to break into the house at the risk of being arrested and charged with the break-in. Because Strickland indicated that she was concerned for her safety, the officers stood by as she forced open the garage service door.
Strickland was only able to get the door partially open because it was blocked by something under a blanket. Strickland asked the officers to remove the blanket, but they told her they could not help. They did agree to look under the blanket if Strickland lifted ...