This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Filed May 8, 2007
Hennepin County District Court
File No. 05007366
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Mike Freeman, Hennepin County
Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center,
John M. Stuart, State Public
Defender, Marie Wolf, Assistant Public Defender,
Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of second-degree murder, appellant challenges the district court’s denial of his motion for a downward durational departure, arguing that the district court failed to consider all of the relevant mitigating factors. We affirm.
the night of February 3 and into the morning of February 4, 2005, appellant
Ta-Raj Benness was out drinking with two companions: Marcus Tyler and the victim, Michael
Harmon. The three men went to several
bars, and Benness and Harmon were both intoxicated. Benness testified that throughout the night, Harmon
“kept talking crazy[,] saying stuff” to him, and “insulting” him. Harmon eventually drove the three men back to
Benness’s home. Benness sat in the back
seat of the car, behind Harmon. Benness
testified that, just before the shooting, he thought that Harmon was reaching
for a gun that Harmon sometimes kept in the console of his vehicle, so Benness
pulled his own gun out of his waistband and shot Harmon seven times in the back.
Tyler, who was sitting in the front
passenger seat, testified that Harmon was lighting a cigarette, not reaching
for a gun, when Benness started shooting.
Benness pleaded guilty to second-degree murder. After the plea hearing but before the sentencing hearing, it was discovered that Benness has a juvenile record that increased his criminal-history score and therefore resulted in a presumptive sentence of 326 months rather than 306 months. The district court nonetheless imposed a 306-month sentence, despite opposition from the state, explaining that imposing the higher sentence would have been “unpalatable” given the fact that the district court had represented to Benness at the plea hearing that he would receive a maximum sentence of 306 months. Benness moved for a downward durational departure from his 306-month sentence, and the district court denied the motion. This appeal follows.
Benness argues that the
district court abused its discretion by denying his motion for a downward
durational departure because the district court “did not fully consider all the
relevant mitigating circumstances.” The
district court must order the presumptive sentence provided in the sentencing
guidelines unless the case involves “substantial and compelling circumstances”
that warrant a downward departure. State v. Kindem, 313 N.W.2d 6, 7 (
Benness argues that a
downward durational departure was warranted for several reasons. First, Benness asserts that he believed that
he was “in peril” because Harmon had been “insulting” him and looking at him
with a “mean face” and because it appeared that Harmon was reaching for a gun
just before the shooting. The sentencing
guidelines provide a nonexclusive list of mitigating factors that may justify a
downward departure, and one of those factors is that the victim was an
aggressor in the incident.
The district court expressly addressed and rejected the argument that Harmon was the aggressor in the incident, noting that Harmon was seated with his back to Benness, was unarmed, and was “in all likelihood lighting a cigarette” just before the shooting, which defies any suggestion that he was the aggressor. Also, no gun was found in the car. The district court also rejected Benness’s claim that Harmon’s oral insults created an “atmosphere of fear and anxiety” that caused the shooting. It concluded that “the idea that because he traded verbal barbs with [Benness], Harmon deserved to die defies common sense.” The district court did not abuse its discretion in arriving at this conclusion.
Second, Benness argues that he should have received a
downward durational departure because the fact that his “personality type [is]
atypical from the average inmate” makes him particularly amenable to
treatment. Benness points to the
testimony of a psychologist who explained that Benness is “chronically
frustrated” because he “aspires to be more but has never been able to get off
the ground. He’s a gentleman [who] can
see across the street but has never been able to walk across the street, so to
speak.” Benness also points to the
testimony of family and friends regarding his “kind-hearted nature.” But Benness concedes that an offender’s
personal characteristics are generally relevant to a dispositional departure,
not to a durational departure, which is what Benness seeks.
Benness also argues that his
“mental disorders” support a downward durational departure. The district court rejected this argument,
and we agree. Mental impairment must be
extreme to serve as a mitigating factor.
State v. Lee, 491 N.W.2d 895,
Finally, Benness argues that
his remorse justifies a downward durational departure. He asserts that he “knew immediately” that he
had done something wrong; that he called his family after the shooting and
expressed his intention to turn himself in; and that he apologized at the
sentencing hearing to Harmon’s family and to the court. Benness concedes that remorse, like personal
characteristics, is typically relevant to a dispositional departure rather than
a durational departure. See State v. Back, 341 N.W.2d 273, 275 (
This is not that rare case in which this court will reverse a district court’s imposition of the presumptive sentence. See Kindem, 313 N.W.2d at 7. The district court’s denial of Benness’s motion to depart downwardly was not an abuse of discretion.