This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



George Edward Griller,


Filed November 4, 1997

Reversed and remanded

Willis, Judge

Hennepin County District Court

File No. 95010183

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2829 University Avenue, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Crippen, Presiding Judge, Huspeni, Judge, and Willis, Judge.



On appeal from his conviction for second-degree murder, appellant George Edward Griller claims that the district court abused its discretion in its evidentiary decisions, its jury instructions, and its upward departure from the sentencing guidelines. We reverse and remand because of prejudicial error in the jury instructions.


Beginning in the late 1980's, two elderly men, William Sawyer and his brother-in-law, Louis Michael, began living with Griller, who claimed to be Sawyer's second cousin. The police received a telephone call in September 1991 reporting moaning and cries for help from Griller's home. The police found Sawyer, who was blind and deaf, in a malnourished, dehydrated state and living in filthy conditions. He was taken to the Hennepin County Medical Center and, later, to a convalescent home. Griller told investigators that Michael was responsible for Sawyer's condition.

Sawyer later claimed in letters to another cousin that Griller had taken his money and his belongings. In September 1994, that cousin forwarded the letters to the police, requesting a fraud investigation on behalf of Sawyer's estate and that the police look into Michael's whereabouts.

During their investigation, the police interviewed one of Griller's neighbors who had seen him digging a hole in his backyard and burying an elderly person in it. The neighbor never saw Michael after that date. The police interviewed Griller, who told them that Michael had moved to Chicago. When the police told Griller they did not believe him, confronting him with his neighbor's report, he admitted that he had come home one day to find Michael dead in a chair. He said that because he did not have money for a proper burial, he buried Michael in the backyard.

On January 27, 1995, the police began to excavate Griller's backyard to search for Michael's remains. They found the dismembered body parts of a different man. On January 30, 1995, Griller admitted that those were the remains of James Keen. Griller was charged with second-degree murder.

Griller testified at trial that in September 1990, he came home and found Keen, an acquaintance of Michael, attempting to rob Michael, who was on the floor crying. Griller testified that when he ordered Keen to leave, Keen became violent and shoved Griller against the refrigerator and pushed his thumbs into Griller's eyes. Griller stated that he feared for his life, so he picked up a hatchet that was lying on the counter and hit Keen on the back of the head twice. Keen released Griller briefly. Griller asserted he did not escape from the house at that point because he felt a responsibility to protect Michael. When Keen began to attack him again, Griller claims he broke a whiskey bottle over Keen's head and that Keen hit Griller again and then fell to the floor. Griller and Michael took the body into the basement, where Griller claims that Michael dismembered Keen's body. Then Griller and Michael dug three holes in the backyard and buried Keen's dismembered body parts in the three different locations and covered them with lime.

The district court allowed the prosecution to introduce evidence regarding (1) Griller's finances and the fraud investigation that led to the discovery of Keen's body, (2) Griller's care of Michael and Sawyer, (3) Michael's death and burial, and (4) the fact that digging continued after Keen was found.

The jury convicted Griller of second-degree murder. The district court imposed the statutory maximum sentence of 480 months, an upward departure of 174 months from the presumptive sentence. The court stated its reasons for the departure were (1) Griller's concealment of Keen's body for four years by dismembering and burying it, (2) the fact that Griller caused Keen's death through cruelty evidenced by multiple blows to the head and no ensuing call for emergency assistance, and (3) the fact that Griller lacked remorse and persistently attempted to deny responsibility and shift blame.



The admissibility of evidence is determined by the district court. Minn. R. Evid. 104(a). This court will not find an evidentiary ruling erroneous in the absence of a clear abuse of discretion. State v. Holscher, 417 N.W.2d 698, 702 (Minn. App. 1988) (citing State v. Olkon, 299 N.W.2d 89, 101 (Minn. 1980), cert. denied, 449 U.S. 1132, 101 S. Ct. 954 (1981)), review denied (Minn. Mar. 18, 1988). If the district court erred in an evidentiary ruling, "a reversal is warranted only when the error substantially influences the jury to convict." State v. Brown, 455 N.W.2d 65, 69 (Minn. App. 1990) (quoting State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981)), review denied (Minn. July 6, 1990).

Griller alleges that the district court abused its discretion in allowing the state to introduce evidence relating to (1) the type of care Griller provided to Michael and Sawyer, (2) the death and burial of Michael, (3) Griller's finances and the investigation into whether he defrauded Michael and Sawyer, and (4) the continued digging in Griller's backyard to try to locate other missing elderly people.

"The general rule in a criminal case is that evidence which in any manner shows or tends to show that the accused has committed another crime independent of that for which he is on trial is inadmissible."

* * * *

It is well recognized that the rule excluding evidence of the commission of other offenses does not necessarily deprive the state of the right to make out its whole case against the accused on any evidence which is otherwise relevant upon the issue of the defendant's guilt of the crime with which he was charged. The state may prove all relevant facts and circumstances which tend to establish any of the elements of the offense with which the accused is charged, even though such facts and circumstances may prove or tend to prove that the defendant committed other crimes. The application of this rule is discussed in State v. Haney, 219 Minn. 518, 520, 18 N.W.2d 315, 316, in which it is pointed out that evidence of other offenses may be admissible where such evidence is "relevant and competent to the proof of the offense in issue." Thus, where two or more offenses are linked together in point of time or circumstances so that one cannot be fully shown without proving the other * * * it is admissible.

State v. Wofford, 262 Minn. 112, 117-18, 114 N.W.2d 267, 271 (1962) (quoting State v. Sweeney, 180 Minn. 450, 455, 231 N.W. 225, 227 (1930)). Here, the district court admitted the evidence to which Griller objects because it concluded the evidence was "inextricably intertwined with the State's case." The court additionally cautioned the state to use financial information only to the extent absolutely necessary to provide a backdrop to the discovery of the bodies and further cautioned the state to avoid inflaming the jury.

To explain how Keen's remains were found, the state needed to discuss that a fraud investigation had begun, that Sawyer had been removed from Griller's care, and that there was a search for Michael. We conclude that admission of the evidence was not an abuse of discretion.


Griller claims that he is entitled to a new trial because the district court materially misstated the law of self-defense in giving a jury instructions that included both CRIMJIG 7.05 and the elements described in State v. Boyce, 284 Minn. 242, 170 N.W.2d 104 (1969). See State v. McCuiston, 514 N.W.2d 802, 806 (Minn. App. 1994) (holding if district court errs by failing to give defendant's instructions on defense of dwelling based upon defendant's theory of case, defendant entitled to new trial unless it is beyond reasonable doubt that district court's error had "no significant impact on the verdict.") (citing State v. Olson, 482 N.W.2d 212, 216 (Minn. 1992)), review denied (Minn. June 15, 1994); State v. Hanson, 514 N.W.2d 600, 602-03 (Minn. App. 1994) (holding that to show prima facie case of error party must show instruction contained "material misstatement of law when read in the context of the instructions as a whole") (quoting State v. Turnipseed, 297 N.W.2d 308, 312 (Minn. 1980)). Griller asserts that (1) the jury instructions the court gave caused the jury to believe they were only permitted to find that Griller acted in self-defense if both the criteria of CRIMJIG 7.05 and the Boyce conditions were present and (2) leading a jury to believe the Boyce conditions must be present for a defendant to use deadly force to prevent the commission of a felony in his home is a misstatement of the law requiring a new trial.

The state argues that Griller waived the right to appeal the jury instructions because his attorney used the Boyce conditions to describe self-defense and, thus, the court's instructions did not cause any additional confusion or alter the verdict and that Griller neither objected to the jury instructions at trial nor moved for a new trial based on the instructions.

The district court instructed the jury that:

No crime has been [] committed when a person takes the life of another person, even intentionally, if the person's action is taken in resisting or preventing an offense, which the defendant reasonably believes exposes the defendant or another to death or great bodily harm, or if the defendant's action is taken in preventing the commission of the felony of robbery in defendant's place of abode.

In order for a killing to be justified for these reasons, three conditions must be met. First, the killing must have been done in the belief that it was necessary to avert death or great bodily harm. Second, the judgment of the defendant as to the gravity of the peril to which he or another was exposed must have been reasonable under the circumstances. Third, the defendant's election to defend must have been such as a reasonable person would have made in light of the danger perceived and the existence of any alternative way of avoiding the peril.

All three conditions must be met, but the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.

These instructions follow the model jury instructions for self-defense, causing death. See 10 Minnesota Practice, CRIMJIG 7.05 (3d ed. 1990).

Generally, if defense counsel fails to object to error at trial, the defendant thereby is deemed to have forfeited his right to have this court consider that error on appeal. See Minn. R. Crim. P. 26.03, subd. 18(3) (providing that "[n]o party may assign as error any portion of the charge or omission therefrom unless the party objects thereto before the jury retires to consider its verdict."). But even when no objection is made to a jury instruction, review still is possible where there were errors in "fundamental law" or "plain error affecting substantial rights." Minn. R. Evid. 103(d); see also State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983); State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 551, 141 N.W.2d 3, 11 (1965) (holding court may reverse on basis of trial error notwithstanding failure to object if failure to reverse would "perpetuate a substantial and essential injustice in the sense that as a result an innocent man may have been convicted.").

Minn. Stat. § 609.065 (1996) provides:

The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor's place of abode.

The Minnesota Supreme Court has recently found instructions virtually identical with those given here to be a material misstatement of the law, holding that, based on the language of Minn. Stat. § 609.065, "it is clear that one does not have to fear great bodily harm or death to justify the use of deadly force to defend against the commission of a felony in one's home." State v. Pendleton, 567 N.W.2d 265, 268 (Minn. 1997).

Because the legislature specifically included a separate definition of "defense of dwelling" -- and omitted any fear of great bodily harm or death language for that defense -- it presumably intended that language to be meaningful. Therefore, * * * we hold that "fear of great bodily harm or death" is not an element of "defense of dwelling."

Id. at 269. Because the jury was instructed here that Griller had to show that he feared great bodily harm or death to justify his use of deadly force to prevent the commission of a felony in his home, Pendleton compels the conclusion that the district court's jury instructions materially misstated the law, and were, therefore, in error.

We must next analyze whether the error was harmless to determine whether a new trial is required. A jury instruction error is not harmless and a new trial should be granted if it cannot be said beyond a reasonable doubt that the error had no significant impact on the verdict. State v. Olson, 482 N.W.2d 212, 216 (Minn. 1992). To determine whether this error had a significant impact, it is necessary to determine whether Griller was entitled to a "defense of dwelling" instruction, for which he would have had to present evidence in three categories:

(1) At the time the defendant used deadly force against the victim, was the defendant preventing the commission of a felony in his * * * home?

(2) Was the belief reasonable under the circumstances?

(3) Was the use of deadly force reasonable under the circumstances in light of the danger then to be apprehended?

Pendleton, 567 N.W.2d at 270.

Griller presented evidence from which a jury could have concluded that when Griller used deadly force, he was in his home and that he had a reasonable belief that deadly force was necessary to prevent a felony assault by Keen.

Griller was therefore entitled to the "defense of dwelling" instruction. Because the defense of dwelling instruction does not require Griller to show that he feared death or great bodily harm to justify his use of deadly force in preventing the commission of a felony in his home, the district court materially misstated the law of "defense of dwelling," and the error was not harmless, Griller is entitled to a new trial.


Griller asserts the district court abused its discretion in imposing an upward departure because Griller's crime was not significantly more serious than the typical murder. Because we are reversing and remanding for a new trial, this issue is moot.

Reversed and remanded for new trial.