County Office of Appellate Courts
Swanson, Attorney General, Saint Paul, Minnesota; and James
C. Backstrom, Dakota County Attorney, Kathryn M. Keena,
Assistant County Attorney, Hastings, Minnesota, for
Cathryn Middlebrook, Chief Appellate Public Defender, Julie
Loftus Nelson, Assistant Public Defender, Saint Paul,
Minnesota, for appellant.
McKeig, J. Dissenting, Chutich, J., Gildea, C.J.
counsel rendered ineffective assistance requiring a new trial
when he conceded the element of premeditation, and therefore
effectively conceded the element of intent, without
appellant's consent, during closing arguments.
Thomas Michael Luby was convicted of first-degree
premeditated murder, Minn. Stat. § 609.185(a)(1) (2016),
and second-degree intentional murder, Minn. Stat. §
609.19, subd. 1(1) (2016), in connection with the stabbing
death of his girlfriend, K.A. Luby appeals, arguing that he
is entitled to a new trial because his defense counsel
provided ineffective assistance by conceding the only
disputed elements of the charged offenses-premeditation and
intent-without his consent. We reverse both of Luby's
convictions and remand this case to the district court for a
Luby was charged with second-degree intentional murder in
connection with the stabbing death of his girlfriend K.A.
See Minn. Stat. § 609.19, subd. 1(1) (requiring
an intentional killing). A grand jury subsequently indicted
Luby for first-degree premeditated murder. See Minn.
Stat. § 609.185(a)(1) (requiring a premeditated and
trial, Luby admitted to stabbing K.A. to death with a knife
while intoxicated. According to Luby, he and K.A. both
suffered from alcoholism. On August 6, 2015, they had been
drinking for 8 days straight. That evening, they drank nearly
all of a 1.75-liter bottle of vodka without eating. Luby
claimed that he consumed the majority of the bottle-
approximately 40 ounces-but that K.A. was more intoxicated
than he was because "she couldn't drink very much
without losing control" due to gastric bypass surgery.
Luby took the vodka away from K.A., but she kept begging him
for more alcohol.
claimed that he went in and out of consciousness during the
remainder of the evening, and that he had an incomplete
memory of what happened. At some point, he awoke to K.A.
holding a butcher knife to his throat. Luby took the knife
from K.A. and cut her stomach. Later that night, Luby again
awoke to K.A. holding the knife to his throat. He disarmed
her and eventually stabbed her with the knife, which caused
some time, Luby called 911 and reported to police that he had
killed K.A. Police found empty vodka bottles throughout the
apartment and smelled alcohol on Luby. Officers did not test
Luby's blood-alcohol-content level, but determined that
K.A.'s blood had an alcohol-content level of .45.
strategy at trial was to concede that he had caused
K.A.'s death, but to argue that his intoxication
prevented him from forming the intent to kill her. In his
opening statement, defense counsel told the jury that
"we really don't have much dispute as to what the
evidence will show." But he asked the jury to
"consider the most serious of the elements" of the
charged offenses, and to specifically focus on the word
"intent, " which he said "is what really will
be in dispute here." Luby testified at trial that he
"never had an intent to kill" K.A.
to closing arguments, the district court instructed the jury
on premeditation, stating that "some amount of time must
pass between the formation of the intent and the carrying out
of the act, " and that "an unconsidered or rash
impulse, even though it includes an intent to kill, is not
closing arguments, the State focused on establishing both
intent and premeditation, arguing that Luby was not too
intoxicated to form the intent to kill and that the nature of
the killing established premeditation. Defense counsel
reminded the jury that "the State must prove each and
every element, " but again directed the jury to focus on
"the most important element in this case . . . the
intent element." As he described the elements of
first-degree murder, counsel made the statement at issue in
First degree murder requires premeditation and the intent to
kill. The instruction will be given to you in writing so you
can go over it. We're not really disputing the
premeditation part. I would submit to you that intent element
is the one that's in question here. For the second
degree, same as first degree, but without premeditation.
added.) Counsel did not mention premeditation again, but
reiterated that "what we are attempting to negate, is
the intent required, and intoxication is only a defense to
State requested rebuttal, during which it told the jury
several times that defense counsel had conceded the element
of premeditation. The State started its rebuttal by stating,
"[Defense counsel] told you that premeditation is not an
issue. They're conceding premeditation." Defense
counsel objected without stating the basis for his objection.
The district court responded by directing the jurors to
"rely on their recollection of the arguments and the
facts in the case." The State then ...