Office of Appellate Courts Mahnomen County
Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, Saint Paul, Minnesota; and Darlene
Rivera, Mahnomen County Attorney, Mahnomen, Minnesota, for respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Theodora Gaïtas, Special Assistant State Public Defender, Saint Paul, Minnesota, for appellant.
1. The district court did not abuse its discretion when, after granting
appellant's unopposed motion to transfer venue, it transferred the case to a county to which appellant objected. In choosing the venue where the case would be tried, the district court properly identified, considered, and weighed all relevant factors, and took additional steps to mitigate potential prejudice and give defendant a fair trial before an impartial jury.
2. The prosecution was not barred by the common law "year-and-a-day rule." If the rule ever existed in Minnesota, it did not survive the 1963 enactment of Minnesota's modern criminal code.
3. The district court did not abuse its discretion in admitting into evidence autopsy and "spark-of-life" photographs of the victim. The prosecution's reference to the photographs in opening statement was not improper.
4. The evidence is sufficient to support defendant's convictions on three counts of first-degree assault of law enforcement officers. But conviction on a fourth count must be reversed because the evidence is insufficient to prove that defendant fired in the direction of the law enforcement officers.
Appellant Thomas Lee Fairbanks was found guilty by a jury of first-degree murder of a peace officer, failure to render aid to a shooting victim, four counts of first-degree assault, two counts of second-degree assault, being a felon in possession of a firearm, and attempted theft of a motor vehicle in connection with the shooting death of Mahnomen County Deputy Sheriff Christopher Lee Dewey. On appeal, Fairbanks makes four arguments: (1) the district court abused its discretion when it transferred venue to Polk County; (2) the common law "year-and-a-day rule" barred the murder prosecution; (3) the district court abused its discretion by admitting into evidence several autopsy photographs and a "spark-of-life" photograph of Deputy Dewey; and (4) the evidence was insufficient to support the jury's verdicts finding Fairbanks guilty of four counts of first-degree assault. We reverse one of the first-degree assault convictions, but otherwise affirm.
During the evening of February 17, 2009, Fairbanks began drinking alcohol at his trailer home in Mahnomen. He and an acquaintance, Daniel Curt Vernier, drank more alcohol at the nearby Shooting Star Casino. They returned to Fairbanks' home. Fairbanks then took a 9-millimeter pistol and fired several shots inside and outside the home. On two separate occasions, police came to Fairbanks' home to investigate the gunfire.
At approximately 7:00 a.m. on February 18, 2009, Fairbanks and Vernier walked to a neighbor's house in order to get more alcohol and elude police. Fairbanks took the pistol with him. Shortly thereafter, Deputy Dewey arrived by squad car, left his vehicle, and walked towards Fairbanks and Vernier. Without provocation, Fairbanks fired at Deputy Dewey, severely injuring him with shots to the head and abdomen. When another deputy arrived, Fairbanks and Vernier retreated to Fairbanks' home. Meanwhile, Deputy Dewey was transported to the Mahnomen Health Center, and then airlifted to a hospital in Fargo.
Over the next several hours, police arrived and surrounded Fairbanks' home. During the standoff, multiple officers reported hearing gunfire coming from Fairbanks' home. Two muffled shots were heard at 8:30 a.m. A third more distinct shot was heard at approximately 9:10 a.m., and it may have struck an adjacent home. Vernier testified that Fairbanks was responsible for the gunfire.
Fairbanks later fell asleep in his home. Vernier then grabbed the pistol from the sleeping Fairbanks, left the house, and surrendered to the police. Eventually Fairbanks surrendered without incident. Fairbanks was charged with attempted murder and other felony offenses.
Fairbanks moved for a change of venue on prejudicial publicity grounds. The State did not object to transferring the trial from Mahnomen County. After considering several alternatives, the district court decided to try the matter in Polk County. Fairbanks, a Native American, objected to Polk County on the ground that it had a low percentage of Native Americans. He also argued that the transfer did not ameliorate his prejudicial publicity concerns. The district court denied Fairbanks' motion to transfer venue from Polk County.
As Fairbanks' trial drew closer, Deputy Dewey's condition deteriorated and he entered hospice care. He died on August 9, 2010, about 18 months after he was shot. Following Deputy Dewey's death, Fairbanks was indicted for first-degree murder of a peace officer. The district court determined that the common law year-and-a-day rule did not bar Fairbanks' murder prosecution.
Before trial, Fairbanks moved in limine to exclude autopsy photographs and a spark-of-life photograph of Deputy Dewey. Of particular concern to Fairbanks was the photographic comparison of Deputy Dewey's upper body and face before the shooting to his face as it appeared during the autopsy. The district court denied the motion to exclude and ruled that the photographs were admissible. The State used the photographs in its opening statement. Immediately after the opening and out of hearing of the jury, Fairbanks objected. The district court overruled Fairbanks' objection. Later, through a medical examiner, the photographs were offered and received into evidence.
Fairbanks testified at trial. He admitted shooting Deputy Dewey with the 9-millimeter pistol. Fairbanks' defense was that he was "very intoxicated and on drugs" at the time of the shooting, and was thereby unable to form the requisite intent.
At the conclusion of the month-long trial, the Polk County jury rejected Fairbanks' intoxication defense and found him guilty of first-degree murder of a peace officer, Minn. Stat. § 609.185(a)(4) (2012); failure to render aid to a shooting victim, Minn. Stat. § 609.662, subd. 2(a) (2012); four counts of first-degree assault, Minn. Stat. § 609.221, subd. 2(a) (2012); two counts of second-degree assault, Minn. Stat. § 609.222, subd. 1 (2012); being a felon in possession of a firearm, Minn. Stat. § 609.165, subd. 1b (2012); and attempted theft of a motor vehicle, Minn. Stat. § 609.52, subd. 2(a)(17) (2012). On ...