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State v. Zumberge

Supreme Court of Minnesota

January 4, 2017

State of Minnesota, Respondent,
v.
Neal Curtis Zumberge, Appellant.

         Office of Appellate Courts Ramsey County

          Lori Swanson, Minnesota Attorney General, Saint Paul, Minnesota; and John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant Ramsey County Attorney, Saint Paul, Minnesota, for respondent.

          Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant State Public Defender, Saint Paul, Minnesota, for appellant.

         SYLLABUS

         1. The district court did not abuse its discretion when, by pretrial order, it excluded certain evidence proffered by appellant. The district court's exclusion of one piece of evidence was harmless error.

         2. The district court did not abuse its discretion when it denied appellant's request for a third-degree murder instruction.

         3. The district court did not err when it denied appellant's motion to dismiss the charge of first-degree murder.

         Affirmed.

          OPINION

          LILLEHAUG, Justice.

         A Ramsey County jury found appellant Neal Zumberge guilty of first-degree murder, first-degree attempted murder, second-degree murder, and second-degree attempted murder, for fatally shooting Todd Stevens and wounding Jennifer Cleven on May 5, 2014. The district court sentenced Zumberge to consecutive terms of life imprisonment without the possibility of release for the first-degree murder of Stevens and 180 months for the attempted first-degree murder of Cleven.

         On direct appeal, Zumberge contends that the district court erred when it excluded evidence relevant to his reasonable fear of Stevens on the night of the shooting, denied his request for a third-degree murder instruction, and denied his motion to dismiss the charge of first-degree murder. For the reasons that follow, we affirm his convictions.

         Neal Zumberge and Todd Stevens were neighbors. Stevens and his longtime girlfriend, Jennifer Cleven, enjoyed feeding deer in their yard and did so for more than a decade. Zumberge, who lived across the street, did not like having deer in the neighborhood.

         Over a period of about two years, Zumberge's relationship with Stevens and Cleven deteriorated. In 2012, Zumberge circulated a letter to neighbors expressing frustration about the deer. Later that year, Stevens and Cleven found mutilated animals in their yard and suspected that Zumberge was responsible. Cleven testified that when she confronted Zumberge about the dead animals, he threatened to kill her. In response, Cleven obtained a harassment restraining order against Zumberge. Tensions continued to rise. Cleven repeatedly accused Zumberge of blowing an air horn to scare the deer feeding in her yard. While talking with a neighbor about the deer, Zumberge said "it would all be over soon."

         On April 29, 2014, Cleven called police and claimed that Zumberge's son, Jacob, had threatened to kill her. Police told Cleven to call them if she saw Jacob so that they could arrest him. Zumberge testified that, following this incident, and out of fear that hostilities would escalate further, he retrieved a 12-gauge shotgun from his basement and taught his wife, Paula, how to use it. He then loaded the gun with four shells, each containing eight pellets of buckshot, removed the trigger lock, and placed the gun under the living room couch.

         About a week later, Cleven saw Jacob at a bar and called the police. Jacob was arrested. Jacob's brother, who was also at the bar, called Paula to tell her about Jacob's arrest. When Cleven returned home that night, Paula went outside to confront her. Paula stood at the end of her driveway and yelled across the street at Cleven, who stood near her own front door. Zumberge watched the confrontation through the living room window.

         At some point during the cross-street yelling, Stevens came out of the house and stood next to Cleven. Upon seeing Stevens leave his house, Zumberge retrieved his shotgun, went to the basement, climbed through an egress window, and peered around the corner of the house toward Stevens and Cleven. Zumberge was located about 145 feet from Stevens. After about one minute, using lip-reading skills allegedly honed when growing up with a deaf brother, Zumberge testified that he thought he saw Stevens say, "I'm gonna kill that f***ing b****." Zumberge testified that he saw Stevens reach for his belt, where Zumberge said Stevens previously kept a gun. Zumberge brought his shotgun up, "it went off, " and "everything . . . was just a blur." Zumberge fired four shots in quick succession, hitting Stevens three times, and hitting Cleven once as she ran back into her house. Stevens died soon after. Cleven recovered from her injuries after hospitalization.

         Zumberge testified that he intended to "stop" Stevens and did not intend to hurt Cleven. Stevens had a phone holder attached to his belt and was not armed when Zumberge shot him.

         The State initially charged Zumberge by complaint with second-degree intentional murder, Minn. Stat. § 609.19, subd. 1(1) (2016), and attempted second-degree intentional murder, Minn. Stat. § 609.17 (2016). Later, the State obtained an indictment on those charges as well as for first-degree premeditated murder, Minn. Stat. § 609.185(a)(1) (2016), and attempted first-degree premeditated murder, Minn. Stat. § 609.17. The district court denied Zumberge's motion to dismiss the first-degree murder charge. The ...


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