may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Sadiq Abdiqafar Hussein,
Hennepin County District Court
File No. 99048094
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Nancy McLean, Teresa Froehlke, Assistant County Attorneys, Hennepin County Government Center, C-2100, Minneapolis, MN 55487 (for respondent)
Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Randall, Presiding Judge, Peterson, Judge, and Shumaker, Judge.
In this appeal from a conviction of second-degree intentional murder, appellant Sadiq Abdiqafar Hussein argues that the evidence was insufficient to sustain a conviction of second-degree murder. He contends that the evidence will sustain only a conviction of first-degree, heat-of-passion manslaughter. Hussein also requests that this court remand for sentencing as a second-degree felony murder. We affirm.
On May 4, 1999, Hussein killed his wife, Farrah Mohamed. In mid-April, Mohamed had separated from Hussein and moved in with her sister. On the evening of May 3, Hussein stopped to see Mohamed at her sister’s apartment and found another man, I.W., at the apartment. Mohamed first told Hussein that I.W. was just a friend, but later told Hussein that she did not love him anymore and that she had slept with I.W. Hussein reacted by grabbing Mohamed by the arm and pushing her. Mohamed called the Richfield police, who directed Hussein to leave the apartment.
On May 4, 1999, Hussein stayed at home by himself rather than go to work. That evening, he drove to the mall where Mohamed was working. As he approached the store where Mohamed worked, he saw Mohamed and I.W. on an escalator, kissing and hugging. He did not confront them or make his presence known, but instead walked back to his car.
Hussein arrived at his car around 9:10 p.m., where he found a knife in the trunk. He waited in his car until approximately 9:45, when he walked back towards the mall with the knife in his pocket. When he got to the mall, he waited in an alcove where there is an exit for mall employees. He tried to telephone his brother, but his brother was not home. Approximately 15 minutes later, when Mohamed emerged from the employee exit, Hussein began to stab her without saying anything to her. Mohamed suffered ten cuts to her body, including a fatal stab wound to the chest.
Hussein walked away after his knife broke in two. He left the mall, ran to his car, and drove back to his apartment. A maintenance man who chased Hussein got his license plate number and alerted the authorities. Once at his apartment, Hussein made four calls to Mohamed’s apartment, although later he did not remember making the calls. Police apprehended Hussein at his apartment. In a May 5, 1999, statement to police, Hussein stated that the news of the affair between Mohamed and I.W. left him in shock, and he did not recall much of the assault that resulted in Mohamed’s death.
At trial, the jury was instructed on four offenses: first-degree murder, second-degree intentional murder, second-degree felony murder, and heat-of-passion manslaughter. The jury acquitted Hussein of first-degree murder and found him guilty of second-degree intentional murder in violation of Minn. Stat. § 609.19, subd. 1(1) (1998) (intentional killing without premeditation).
D E C I S I O N
1. In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume the jury believed the state’s witnesses and disbelieved any contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
“Whoever * * * causes the death of a human being with intent to effect the death of that person or another, but without premeditation,” is guilty of second-degree murder. Minn. Stat. § 609.19, subd. 1(1) (1998).
A person is guilty of first-degree manslaughter if the person
intentionally causes the death of another person in the heat of passion provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances.
Minn. Stat. § 609.20(1) (1998).
An intentional killing may be mitigated to first-degree manslaughter if (1) the killing was done in the heat of passion, and (2) the passion was provoked by words and acts of another such as would provoke a person of ordinary self-control under like circumstances.
State v. Buchanan, 431 N.W.2d 542, 549 (Minn. 1988).
To determine whether the killing was done in the heat of passion requires a subjective analysis. * * * “[I]t is the emotional status of the defendant which is of primary importance in determining whether a homicide is murder or manslaughter in the first degree.”
However, to determine whether there were acts sufficient to provoke a person of ordinary self-control under like circumstances requires an objective analysis. The adequacy of the provocation is judged from the perspective of a person of ordinary self-control under like circumstances.
State v. Nystrom, 596 N.W.2d 256, 262 (Minn. 1999) (citations omitted) (quoting State v. Boyce, 284 Minn. 242, 254-55, 170 N.W.2d 104, 112 (1969)).
Homicide may be reduced to manslaughter if committed in the heat of passion on being informed of a spouse’s adultery if the jury could find the circumstances were such as reasonably to cause heat of passion.
Of primary importance in separating murder from first degree manslaughter is the defendant’s emotional state.
State v. Johnsen, 364 N.W.2d 494, 496 (Minn. App. 1985) (citations omitted), review denied (Minn. May 20, 1985).
Once a defendant raises a claim of heat of passion, the burden shifts to the state to prove beyond a reasonable doubt the absence of heat of passion.
State v. Robinson, 539 N.W.2d 231, 238-39 (Minn. 1995). Hussein’s argument that the evidence supports only a heat-of-passion manslaughter conviction is essentially that the state failed to meet its burden of proving beyond a reasonable doubt the absence of heat of passion.
We conclude that the evidence was sufficient to allow the jurors to conclude that the state met its burden of proof. With respect to the first element, the jury could reasonably find that Hussein did not act in the heat of passion. The evidence established that Hussein learned about the affair the day before he attacked Mohamed. During that time, Hussein was distraught, but he was also in sufficient control of his emotions to comply with a police order to leave Mohamed’s apartment. Also, Hussein did not attack his wife immediately upon seeing her at the mall with I.W. Instead, he went to his car, waited 35 minutes, returned to the mall, and waited another 15 minutes before the assault. Hussein said in his statement to police that he did not think Mohamed said anything to him before the stabbing. Therefore, the assault was not provoked by anything that Mohamed said or did immediately before the assault.
With respect to the second element, Hussein argues that the circumstances that he faced could arouse passions that would cause any man to act rashly. There is no doubt that Hussein faced trying circumstances. During the day before the assault, his wife told him that she did not love him anymore and that she had slept with another man. He also saw his wife at the mall hugging and kissing the man she was involved with. But the jury could reasonably conclude that these trying circumstances were not sufficient to provoke a person of ordinary self-control under like circumstances to cause the death of another person.
2. Hussein urges us to adopt “the last straw” theory, which is recognized in some other states. Under this theory, sufficient provocation may be found when a smoldering resentment or pent-up rage resulting from earlier insults or humiliating events culminates in a triggering event that, by itself, is insufficient provocation. See People v. Berry, 556 P.2d 777 (Cal. 1976) (discussing extended course of provocative conduct by victim). However, extending current law is the task of the supreme court or the legislature, not the court of appeals. State v. Anderson, 603 N.W.2d 354, 357 (Minn. App. 1999), review denied (Minn. Mar. 14, 2000), cert. denied, 121 S. Ct. 196 (2000). Consequently, we will not adopt “the last straw” theory.
3. In his pro se brief, Hussein asks that if we do not find that this case is a classic case of heat-of-passion manslaughter, we remand for sentencing as a second-degree felony murder, without intent. Hussein is correct that second-degree felony murder does not require a showing of intent. Minn. Stat. § 609.19, subd. 2(1) (1998). But he does not explain why he should be sentenced for second-degree felony murder when the jury did not find him guilty of that offense. The jury was instructed on second-degree felony murder, without intent, but concluded that Hussein acted with intent.