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State v. Luby

Supreme Court of Minnesota

December 6, 2017

State of Minnesota, Respondent,
Thomas Michael Luby, Appellant.

         Dakota County Office of Appellate Courts

          Lori Swanson, Attorney General, Saint Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Kathryn M. Keena, Assistant County Attorney, Hastings, Minnesota, for respondent.

          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.


         Defense 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.

         Reversed and remanded.


          McKEIG, Justice.

         Appellant 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 new trial.


         Thomas 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 intentional killing).

         At 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.

         Luby 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 her death.[1]

         After 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.

         Luby's 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.

         Prior 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 premeditated."

         During 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 this appeal:

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.

         (Emphasis 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 intent."[2]

         The 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 ...

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