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State v. DeRosier

April 21, 2005



1. Inasmuch as the victim's hearsay statements were cumulative, merely corroborating other witnesses' testimony and were not otherwise prejudicial, the verdict rendered was surely unattributable to any error in admitting the hearsay statements.

2. Where the state introduced many statements that defendant made to law enforcement, the prosecutor's present-tense comments in closing argument that the defendant "knows" what happened, coupled with a remark that "it would be nice to know" what happened, are of such a character that a jury would naturally and necessarily take them to be a comment on the defendant's failure to testify. Comment on a defendant's election not to testify is per se reversible error if (1) the comment is extensive, (2) the comment stresses to the jury that an inference of guilt from silence is a basis for conviction, and (3) there is evidence that could have supported acquittal. If these factors are absent, the misconduct is reviewed for harmless error. In evaluating an error in the context of a prosecutor's reference to the defendant's failure to testify, the question a reviewing court must ask is this: absent the prosecutor's improper comments, is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty? In view of the minimal cumulative effect of the comments, the substantial amount of properly admitted evidence of guilt, the lack of an objection, and prior instruction on the defendant's right not to testify, the error was harmless.

3. Circumstantial evidence is entitled to the same weight as direct evidence so long as the circumstances proved are consistent with the hypothesis that the defendant is guilty and inconsistent with any rational hypothesis except that of guilt. Where there was ample evidence circumstantially connecting defendant to the homicides, including evidence that he had access to the murder weapon and ammunition, viewing the evidence in the light most favorable to the verdict, the evidence clearly supports the jury's verdict.

4. In determining whether a delay constitutes a deprivation of the right to a speedy trial, courts consider (1) the length of the delay, (2) the reason for the delay, (3) whether the defendant asserted his or her right to a speedy trial, and (4) whether the delay prejudiced the defendant. When the overall delay in bringing a case to trial is the result of the defendant's actions, there is no speedy trial violation.

The opinion of the court was delivered by: Anderson, Russell A., Justice.


Heard, considered and decided by the court en banc.


Appellant Joshua John DeRosier was convicted and sentenced in Crow Wing County District Court for first-degree murder, in violation of Minn. Stat. § 609.185(a)(1) (2004), in connection with the shooting deaths of his grandmother and step-grandfather. On appeal, DeRosier claims that he was denied a fair trial because various hearsay statements were admitted, the prosecutor committed misconduct in closing argument by referring to DeRosier's failure to testify, the evidence was insufficient to support the convictions and he was denied a speedy trial. We affirm.

DeRosier was born on December 30, 1982. Periodically, he lived in the basement of the rural Brainerd home of his grandmother Angeline (Angie) Bieganek and her husband, Theodore (Ted). According to trial testimony, DeRosier had a good relationship with his grandmother, who helped him financially, had "always pretty much been there for him," and "stuck by him." DeRosier helped Ted in a woodworking shop in the home's detached garage, but there had been friction between them. There were "rules," such as keeping quiet and parking by the detached garage so Ted could leave from the attached garage whenever necessary. At some point, Ted told Angie that either DeRosier or he had to leave. In October 2001, DeRosier moved to the Paul Bunyan Inn in Brainerd where he worked from 11:00 p.m. to 7:00 a.m. as the night caretaker in exchange for a room. DeRosier would return to the Bieganek residence, a five to seven minute drive from the inn, to do his laundry.

In mid-October 2001, Angie helped DeRosier purchase a 2000 Chevrolet pickup truck by co-signing the loan and applying for credit life insurance that named her and DeRosier as insureds. DeRosier struggled to make the monthly truck payments. Angie withdrew funds from a trust account she had previously established for DeRosier. She gave DeRosier $400 of the funds and kept the remaining money for debts DeRosier owed her. DeRosier understood that he owed his grandmother money, but was upset that the $400 would not cover the month's truck payment. He told a girlfriend that life would be easy for him if something were to happen to his grandparents because of the credit life insurance, and told another friend that he wished something would happen to his grandmother so the insurance would pay off the truck.

On December 22, 2001, DeRosier went to his uncle Gregory Schley's farm southeast of Brainerd for help with finding employment or living arrangements. The door was unlocked but no one was inside because Schley, his son, and his son's fiancée were out cutting wood, so DeRosier used the bathroom and left a note for Schley indicating that he had "stopped by to wish you a merry X-mas & to B.S. a little - nothing special * * * 2:57 pm Sat."

On the morning of December 23, 2001, DeRosier went to his grandfather John Viet's home in Brainerd. DeRosier told Viet he was going to shoot at a gravel pit and needed some .22-caliber shells, and also asked Viet how he should handle his gun-shy puppy. Viet gave DeRosier advice and a container of .22-long rifle shells.*fn1 They visited for a while, DeRosier left, and then returned to Viet's later in the day for Christmas supper.

Later that day, around 9:00 p.m., DeRosier met his friend Ryan Franz at Pauline's, a restaurant and bowling alley near the Paul Bunyan Inn. He also chatted with Leah Fossum, a former girlfriend, and invited her to his room. DeRosier and Franz left Pauline's shortly before 11:00 p.m. and went to DeRosier's room where they played video games, and Fossum went to a Perkins restaurant with friends. After dropping off her friends, Fossum went to DeRosier's room, arriving around 12:30 a.m., on December 24. By that time, Franz had left. DeRosier invited Fossum to Christmas dinner at the Bieganeks' home, but Fossum had to work. DeRosier and Fossum both knew DeRosier was to relinquish his key to the back door of the Bieganek residence that day, which upset DeRosier because he would be unable to do laundry there when no one was home.

Fossum stayed in DeRosier's room until about 1:15 or 1:30 a.m., and as she was leaving DeRosier said he had to take his puppy outside. He put on his cap and jacket and asked her to call him when she got home. After arriving home, Fossum attempted twice to call DeRosier's room, with no answer. She then reached DeRosier on his cell phone and asked whether he was taking calls in the room. DeRosier explained that he had been running errands, including delivering towels to guests, and had just returned to his room.*fn2 Telephone records indicated that the call was made at 2:22 a.m. and lasted two minutes, but it was impossible to determine DeRosier's location at that time. Between 5:00 and 6:00 a.m., as a motel guest, who was an auto mechanic, and the guest's fiancée were leaving, a newer Chevrolet pickup, "maybe about a '99, 2000," was pulling in, seemingly in a hurry. The pickup had a lone male occupant. The guest later recognized the truck in a newspaper photograph taken outside the Bieganek residence.

At 11:00 a.m. on December 24, DeRosier called 911 to report that he had found Angie and Ted deceased in their bed. When law enforcement arrived, they found DeRosier's 2000 Chevrolet pickup parked in front of the attached garage, a laundry basket and clothing on the ground near the front door, an unfired .22-caliber bullet on the front stoop, broken glass from the front door outside and inside the door, and ...

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