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Kenya Law / Blog / Case Summary: A conviction for third-degree murder could be sustained even if the death-causing act was of a reckless nature and was directed at a single person.

A conviction for third-degree murder could be sustained even if the death-causing act was of a reckless nature and was directed at a single person.

State of Minnesota v Mohamed Mohamed Noor

A19-1089

State of Minnesota Court of Appeals

Larkin, Johnson & Bjorkman, JJA

February 1, 2021

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Constitutional Law –Sixth amendment – right to a public trial – closure of a courtroom during a criminal proceeding – where an accused claimed violation of his right to public trial due to closure of a courtroom by the court – whether right to a public trial was absolute- Constitution of the United States, 6th Amendment

Criminal Law – offences – murder – third degree murder – elements – where the death-causing act was of a reckless nature and was directed at a single person– scope of depraved mind in a third degree murder – whether a conviction for third-degree murder under Minnesota Statutes section 609.195(a) could be sustained even if the death-causing act was directed at a single person – 2016 Minnesota Statutes, section 609.195(a)

Criminal Law offences – third degree murder vis- a- vis second degree murder – nature – what was the nature of third degree murder vis-à-vis second degree murder.

Criminal Law – police officers – power to use firearms – conditions as to the use of firearms – where a police officer is charged with murder of a civilian who posed no threat – whether the use of deadly force could be justified – when was the use of deadly force by a police officer authorized by statute -2016 Minnesota Statutes, § 609.066, subd. 1, 2 (1)

Brief facts

In July 2017, the appellant (Mohamed Noor) was on patrol as a Minneapolis police officer when he shot and killed Justine Ruszczyk (the deceased) who had called 911 to report a woman yelling behind her home. The appellant and his partner responded to the call of unknown trouble and there was no indication that a weapon was associated with the call. The appellant’s partner was driving the squad car, and the appellant was in the passenger seat. When the officers reached the end of the alley, the appellant entered Code 4 into the squad-car’s computer, meaning that the officers were safe and did not need backup. The appellant’s partner noticed the silhouette of a person standing outside the driver’s side of the squad car. He could not see whether the silhouette was a man or woman, nor could he see the figure’s hands. He was startled, said something like “oh, Jesus,” and reached for his gun, but he did not see a gun, hear a threat, or see the silhouette make any threatening movements. The appellant’s partner did not fire his gun because he did not see anything indicating that the silhouette was a viable threat and before he had time to register what he was seeing, the appellant fired his gun, over his body, and out the driver’s-side window of the squad car. The appellant made a split-second decision to fire his gun without first observing the deceased’s hands or a weapon and the bullet fired from his gun struck the deceased’s abdomen, and she died moments later. A jury found the appellant, a former police officer, guilty of third-degree murder and second-degree manslaughter, based on his shooting of an unarmed woman when responding to a 911 call. The respondent (State of Minnesota) charged the appellant with second-degree murder under Minnesota Statute (Minn. Stat.) (section) § 609.19, subd. 1(1) (2016); third degree murder under Minn. Stat. § 609.195(a); and second-degree manslaughter under Minn. Stat. § 609.205(1) (2016). The appellant challenged his resulting conviction of third-degree murder at the trial court, arguing that the evidence was insufficient to support the jury’s verdict. He also argued that the evidence was insufficient to prove that his use of deadly force was not authorized by statute. Lastly, the appellant argued that the district court violated his Sixth Amendment right to a public trial and violated his due-process right to explain his conduct.

Issues

  1. Whether a conviction for third-degree murder under Minnesota Statutes section 609.195(a) (2016) could be sustained even if the death-causing act was directed at a single person.
  2. Whether the reckless nature of a defendant’s act alone could establish that the defendant acted with a depraved mind within the meaning of Minn. Stat. § 609.195(a).
  3. What was the nature of third degree murder vis-à-vis second degree murder?
  4. Whether right to a public trial was absolute.
  5. When was the use of deadly force by a police officer authorized by statute?

Relevant provisions of the law

2016 Minnesota Statutes

§ 609.195(a) – Murder in the Third Degree Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years

. § 609.066, subd. 1 – Authorized use of Deadly Force by Peace Officers

Deadly force defined. For the purposes of this section, “deadly force” means force which the actor uses with the purpose of causing, or which the actor should reasonably know creates a substantial risk of causing, death or great bodily harm. The intentional discharge of a firearm, other than a firearm loaded with less lethal munitions and used by a peace officer within the scope of official duties, in the direction of another person, or at a vehicle in which another person is believed to be, constitutes deadly force. “Less lethal munitions” means projectiles which are designed to stun, temporarily incapacitate, or cause temporary discomfort to a person. “Peace officer” has the meaning given in section 626.84, subdivision 1.

§ 609.066, subd. 2 (1) – Authorized use of Deadly Force by Peace Officers

Use of deadly force Notwithstanding the provisions of section 609.06 or 609.065, the use of deadly force by a peace officer in the line of duty is justified only when necessary:

(1) to protect the peace officer or another from apparent death or great bodily harm; (2) to effect the arrest or capture, or prevent the escape, of a person whom the peace officer knows or has reasonable grounds to believe has committed or attempted to commit a felony involving the use or threatened use of deadly force; or (3) to effect the arrest or capture, or prevent the escape, of a person whom the officer knows or has reasonable grounds to believe has committed or attempted to commit a felony if the officer reasonably believes that the person will cause death or great bodily harm if the person’s apprehension is delayed.

Held

  1. The issue was not whether the appellant acted with intent to kill; the issue was whether the evidence was sufficient to prove that the appellant evinced a depraved mind, without regard for human life. It was not necessary that more than one person was or might have been put in jeopardy by [the defendant’s reckless] act. The third-degree murder statute’s reference to perpetration of an act eminently dangerous to others did not preclude its application when the death causing act endangered only one person because in construing statutes, the singular included the plural and the plural included the singular. Convictions of depraved-heart murder could be based on conduct endangering a group of persons or only a single person.
  2. Minn. Stat. § 609.195(a) did not require that more than one person be put in jeopardy and the Supreme Court had previously upheld a conviction of third-degree murder even though the victims were known to and targeted by the defendant. It thus could not be said that the appellant’s third-degree murder conviction was invalid simply because his dangerous act was directed at the single person outside of his partner’s window.
  3. Minnesota’s second degree- murder statute set forth two forms of murder: intentional and unintentional in Minn. Stat. § 609.19 (2016). That statute twice used the phrase without intent to effect the death of any person to describe circumstances constituting unintentional murder, as opposed to intentional murder. The Supreme Court’s interpretation of the clause without intent to effect the death of any person in Minn. Stat. § 609.195(a) was consistent with, and provided context in that it was necessary that the act was committed without special design upon the particular person or persons with whose murder the accused was charged.
  4. The killing of a human being, unless it was excusable or justifiable, was murder in the first degree, when perpetrated with a premeditated design to effect the death of the person killed, or of another. Such killing of a human being was murder in the second degree, when committed with a design to effect the death of the person killed, or of another, but without deliberation and premeditation. Such killing of a human being, when perpetrated by an act eminently dangerous to others, and evincing a depraved mind, regardless of human life, although without a premeditated design to effect the death of any individual, was murder in the third degree. The phrase without intent to effect the death of any person served to distinguish unintentional third- from intentional second degree murder and that the defendant’s intent, or lack thereof, was the relevant distinguishing factor. The phrase did not preclude the possibility of a third-degree murder conviction if an unintentional death was caused by an act directed at a single person.
  5. An act that inevitably endangered human life, as every sane man had to know, showed that the actor was possessed, in short, of a depraved mind. Thus, the nature of the appellant’s act, in and of itself, could demonstrate that he possessed a depraved mind. As to the existence of a depraved mind, the degree of risk associated with an underlying death-causing act was what separated unintentional murder from manslaughter.
  6. For murder the degree of risk of death or serious bodily injury had to be more than a mere unreasonable risk, more even than a high degree of risk. Perhaps the required danger could be designated a very high degree of risk to distinguish it from those lesser degrees of risk which would suffice for other crimes. Such a designation of conduct at all events was more accurately descriptive than that flowery expression found in the old cases and occasionally incorporated into some modern statutes i.e. conduct evincing a depraved heart, devoid of social duty, and fatally bent on mischief. Although very high degree of risk meant something quite substantial, it was still something far less than certainty or substantial certainty.
  7. The distinctions between an unreasonable risk and a high degree of risk and a very high degree of risk were, of course, matters of degree, and there was no exact boundary line between each category; they shaded gradually like a spectrum from one group to another. The first step of the circumstantial-evidence test was to identify the circumstances proved, deferring to the fact-finder’s acceptance of the proof of those circumstances and rejection of evidence in the record that conflicted with the circumstances proved by the state. Under the second step, the reasonableness of all inferences that might be drawn from the circumstances proved to determine whether the circumstances proved were consistent with guilt and inconsistent with any rational hypothesis except that of guilt were independently examined.
  8. The appellant fired his weapon from inside the squad car and across his partner’s body, without seeing the deceased’s hands or any weapon. According to the appellant’s testimony, he simply observed her raising her arm. He made a split-second decision to shoot the deceased without making any attempt to ascertain who she was, what she was doing in the alley, or whether she possessed a weapon or posed a threat. The appellant fired his weapon through the squad-car’s window moments after observing a bicyclist approaching the squad car. Those circumstances supported a reasonable inference that the appellant acted with a depraved mind. He was aware that his conduct created a substantial and unjustifiable risk of death to another person and consciously disregarded that risk.
  9. The appellant’s conduct also supported reasonable inferences that his act was eminently dangerous and without regard for human life, and that he disregarded a very high degree of risk. The evidence was sufficient to establish that the appellant acted with a depraved mind, even though his death-causing act was the result of a split-second decision directed at the person outside of the squad-car’s window. The evidence was therefore sufficient to sustain the appellant’s conviction of third-degree murder.
  10. The appellant’s own testimony that he did not see the deceased holding a weapon refuted his argument that he was protecting his partner from apparent death or great bodily harm. Instead, the only reasonable inference from the circumstances proved was that his use of deadly force was unauthorized. Thus, the evidence was sufficient to disprove the appellant’s affirmative defense under Minn. Stat. § 609.066.
  11. In all criminal prosecutions, the accused would enjoy the right to a public trial. The public-trial requirement was for the benefit of the accused; that the public could see he was fairly dealt with and not unjustly condemned, and that the presence of interested spectators could keep his triers keenly alive to a sense of their responsibility and to the importance of their functions. Notwithstanding the text of the Sixth Amendment, the right to a public trial was not absolute. Rather, the closure of a courtroom during a criminal proceeding could be justified if:
    1. The party seeking to close the hearing advanced an overriding interest that was likely to be prejudiced;
    2. the closure was no broader than necessary to protect that interest;
    3. the district court considered reasonable alternatives to closing the proceeding; and
    4. The district court made findings adequate to support the closure.
  12. The Supreme Court had recognized that the right to a public trial was not an absolute right and that some closures were too trivial to amount to a violation of the Sixth Amendment. For example, it had been recognized that administrative proceedings, such as those addressing scheduling, did not implicate the Sixth Amendment right to a public trial.
  13. The trial court took steps to ensure that the appellant received a public trial, such as posting public filings on the judicial branch website, opening a second courtroom, and using live-feed technology to ensure that more people could watch the trial.
  14. The trial court did not completely prevent the appellant from testifying regarding why he thought he was being ambushed. The trial court only limited the appellant’s ability to testify about police ambushes in other states. And, despite the trial court’s limitation, the jury heard significant testimony regarding police ambushes, both in and outside of Minnesota.

Per Johnson, J (dissenting in part)

  1. The Supreme Court’s most recent formulation of the essential elements of the offense of depraved-mind third-degree murder was that the state had to prove beyond reasonable doubt that:
    1. The defendant engaged in an act that caused the death of another person;
    2. the death was caused by the defendant’s perpetration of an act eminently dangerous to others;
    3. the defendant’s act evinced a depraved mind regardless of human life; and
    4. The act was committed in the county in which the case was charged.
  2. The depraved-mind concept also is based on another part of the text of the statute,
  3. The phrase without intent to effect the death of any person reflected that the depraved-mind murder statute was intended to cover cases where reckless, mischievous, or wanton acts were committed without special regard to their effect on a particular person, but with a reckless disregard of whether they injured one person or another. The phrase had been interpreted to mean that a defendant could not be convicted of depraved-mind murder if his or her conduct was directed at the particular person who was killed. The offense of depraved-mind third-degree murder applied to killings that were committed with a general malice but not killings that were committed with a particular malice for the intended victim or with mere culpable negligence. The no-particular-person requirement was incorporated into the concept of depraved mind in the third element of the offense.
  4. The evidence introduced by both parties showed that the appellant directed his conduct toward a particular person, the deceased. The appellant’s partner testified that the appellant pointed and fired his service weapon at the silhouette in the window, the deceased. One of the state’s expert witnesses testified that the appellant identified the deceased as a target.
  5. The primary issue at trial was not whether the appellant shot at the deceased but why he did so. The appellant was not intoxicated. He was not angry. He was not inflamed by emotions, disappointments, and hurt to such degree that he ceased to care for human life and safety. He did not engage in conduct that endangered anyone other than the particular person whom he targeted. There was no evidence concerning any depravity of mind either before the shooting, when the appellant and his partner were driving slowly and quietly through the alley, or after the shooting, when the appellant assisted with life-saving measures on the deceased.
  6. The appellant testified that his decision to shoot the deceased was a split-second decision intended to stop the threat and protect his partner. The state’s evidence did not contradict the appellant’s testimony about his state of mind. The evidence does not show that the appellant was without regard for human life. He testified that he shot at the deceased to protect his partner’s life. After firing the fatal shot, the appellant went to the deceased’s side and assisted in the administration of first aid. Within minutes, the appellant became distraught by the knowledge that he had shot and killed a person who had intended no harm. All of that evidence showed that the appellant was not without regard for human life.
  7. The standard of review for circumstantial evidence instructed an appellate court to affirm a conviction only if the circumstances proved as a whole were consistent with the hypothesis that the accused was guilty and inconsistent with any rational hypothesis except that of guilt. Given the circumstances proved, it was reasonable to infer facts that were inconsistent with guilt, namely, the inference that the appellant did not lack a proper regard for human life. The evidence also was insufficient to prove the third element of the offense of depraved-mind third-degree murder because the appellant did not have a depraved mind and was not without regard for human life.

Appeal dismissed.

Relevance to Kenya’s legal system

The Constitution of Kenya, 2010 provides in article 26 (1) and (3) respectively that every person has the right to life and a person shall not be deprived of life intentionally, except to the extent authorised by the Constitution or other written law.

The Penal Code, Cap 63 Laws of Kenya, provides for the offences of manslaughter and murder. In section 202, the statute states that any person who by an unlawful act or omission causes the death of another person is guilty of the felony termed manslaughter. The sentence for manslaughter is life imprisonment. Subsection (2) goes on to explain an unlawful omission as an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm.

Section 203 then provides that any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. The sentence for murder is the death penalty. Malice aforethought is explained in section 206 to include evidence showing an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not and knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.

The sixth schedule of the National Police Service Act, No. 11A of 2011 provides in part A conditions as to the use of force in that a police officer shall always attempt to use non-violent means first and force may only be employed when non-violent means are ineffective or without any promise of achieving the intended result. The force used shall be proportional to the objective to be achieved, the seriousness of the offence, and the resistance of the person against whom it is used.

Part B provides for conditions as to the use of firearms in that they may only be used when less extreme means are inadequate and for the following purposes—

(a)saving or protecting the life of the officer or other person;

(b)in self-defence or in defence of other person against imminent threat of life or serious injury;

(c)protection of life and property through justifiable use of force;

(d)preventing a person charged with a felony from escaping lawful custody; and

(e)preventing a person who attempts to rescue or rescues a person charged with a felony from escaping lawful custody.

In I.P. Veronica Gitahi & another v Republic [2017] eKLR, the court held that the provisions of the National Police Service Act were a complete and exhaustive code and demanded that a police officer had to resort to non-violent means as the first option and to use force only when non-violent means were ineffective. The Act demanded that the force used had to be proportional to the objective to be achieved, the seriousness of the offence and the level of resistance, and still, only to the extent necessary. When it came to use of firearms, the Act made that a last resort option.

The court further held that in considering whether the use of force and firearms was justified in the circumstances of the case, account had to be taken of the fact that the police raid was in the dead of the night at a home where a family was living or was reasonably expected to be living. The use of firearms in such a situation was not consistent with the imperatives of the Constitution and the National Police Service Act and in particular the express requirement that police officers had to make every effort to avoid using firearms on children. The use of lethal force by the police in the circumstances of the case was not proportional to the threat that they allegedly faced and that the killing of the deceased was contrary to the National Police Service Act and therefore an unlawful killing justifying conviction for the offence of manslaughter.

In Republic v Evans Maliachi Wiyema [2021] eKLR, the court held that the National Police Service Act demand that a police officer had to resort to non-violent means as the first option and to use force only when non-violent means were ineffective. To determine whether a police officer had used force or a firearm as required by the Act therefore could not be a subjective issue. The court had to evaluate all the circumstances surrounding the use of force or firearm so as to determine, for example, whether force was used as a last option; whether it was proportionate to the threat that confronted the police officer. The court further held that the accused acted with mens rea, recklessly and in violation of the law. His actions were made all the more unacceptable by the fact that he did not report the incident but instead chose to assist in prosecuting the fishermen. His actions did not add up and did not support the defence of self-defence. The accused was guilty of murder and was convicted for the same.

The US (State of Minnesota) judgment is therefore instructive and jurisprudential to Kenya, in matters of research and comparative analysis in the different degrees of murder in the two jurisdictions and should Kenya want to expand the different levels of murder, the US judgment develops the law in the same sense. The judgment also echoes Kenya’s law in regard to use of deadly force by police officers against civilians, that is, the circumstances under which it is permitted by law.

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