This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Donna Gisele Miller,


Filed January 19, 1999

Reversed and remanded

Randall, Judge

Dissenting, Short, Judge

Hennepin County District Court

File No. 97-013322

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and

Amy Klobuchar, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

William E. McGee, Hennepin County Public Defender, Renee Bergeron, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant)

Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Short, Judge.



A jury convicted appellant Dona Gisele Miller of second-degree murder for the stabbing death of her live-in boyfriend. Miller appeals from her sentence of 114 months and argues: (1) the prosecutor committed misconduct; (2) the district court erred when it refused to give a jury instruction regarding defense of a dwelling and included an instruction regarding the duty to retreat; and (2) the evidence was insufficient to sustain her conviction. We reverse and remand for a new trial.


On February 14, 1997, Robert Earl Cosey (Earl Cosey) died of a single stab wound to the chest. Donna Gisele Miller admitted to the stabbing, which occurred during an argument at the apartment they shared. Miller did not testify at trial. The jury was shown a police videotape of her interview, taken by a hidden camera the night of the stabbing. Sergeant Christine Arneson told Miller that Earl Cosey was dead and informed Miller that she was under arrest. Arneson then questioned Miller, who had a blood alcohol level of .29, about the events of February 14.

Miller knew Earl Cosey for about two years before she moved from Chicago to join him in Minnesota in late 1996. The evening of February 14, Miller was getting ready to go out with Earl Cosey, B.C. Cosey (Earl's brother who lived in the same apartment with Miller and Earl), and the residents of the lower half of the duplex. Miller stated that both B.C. Cosey and Willie Mae Hollingsworth, who lived downstairs, were in the kitchen when Earl Cosey began to hit her. Miller claims that B.C. told Earl to stop hitting her. Earl then swore at Miller. Miller told Earl that he could not hit her any more, then she stabbed him in the chest with a kitchen knife. After she stabbed him, she pulled up Earl's shirt, saw the wound, and told B.C. to go call 911 (they did not have a phone in the apartment).

Arneson also took Miller's official statement. The statement, which was read into the record, reflects that Earl Cosey threw a chair at Miller before hitting her. Miller stated that she was just trying to defend herself and she did not mean to kill anyone. Arneson observed a red streak on the right side of Miller's neck, but Miller did not report any other injuries. During the time when Miller was in the interrogation room alone, she cried and mumbled, sometimes incoherently, that she did not believe that Earl was dead and that she did not mean to kill him.

Sergeant Mark Allen Lenzen was one of the first officers to arrive at the duplex on February 14. When he walked into the apartment, he saw Earl Cosey lying on his back. He saw Miller crying as she picked up Earl's arm, dropped it, and it fell to the floor. Miller admitted to the officer that she stabbed Earl Cosey after he hit her. Lenzen observed a broken chair in the kitchen and a box cutter under the chair. Another officer, Nicholas Torberg, testified that he checked Earl Cosey for a pulse and breathing, and, after finding neither, called an ambulance. Miller also admitted to Torberg that she stabbed Earl Cosey. The coroner found the cause of death was a stab wound to the chest. At the time of Earl Cosey's death, he had a blood-alcohol level of .18.

B.C. Cosey testified that on February 14, he was in his room when he heard arguing and loud talking. He also heard a chair break. He got up to see what was going on, walked into the kitchen, and saw Miller with her back against a table with Earl Cosey standing in front of her. B.C. testified that Miller had a knife in her hand that was covered with blood, and he noticed that Earl had been stabbed. He claims he did not see Earl hit Miller, nor did he see the actual stabbing. He did, however, state that he saw Earl hit Miller on other occasions. He testified that Miller was remorseful about the stabbing.

Willie Mae Hollingsworth, who lived downstairs from Miller testified that they all had plans to go out on February 14. At approximately 6:00 p.m., she went upstairs to borrow a skirt from Miller. Miller came down around 8:00 p.m. and asked Hollingsworth to do her hair, so Hollingsworth went upstairs and curled Miller's hair. Hollingsworth was back downstairs when she heard noise like furniture and things moving around. She heard Miller say, "Earl, leave me alone, leave me alone." Next, B.C. Cosey ran downstairs and told her that Earl had been stabbed. Hollingsworth went upstairs and saw Earl lying on the floor with Miller beside him telling him not to die on her.

Archie Tanner, another neighbor, claimed that he saw Earl Cosey push Miller down the stairs earlier that day. But, Miller did not mention this incident during her questioning, and it was not corroborated by any other witness.

During the trial, various physicians and nurses testified that on previous occasions, both Miller and Earl Cosey went to the hospital for medical treatment due to injuries inflicted upon each other. On November 7, 1996, Miller went to the emergency room because she had been kicked on the right side of her head, and on her chest and thigh. The emergency room doctor saw evidence of an older bite on her abdomen. Police were dipatched to the hospital. Miller told police that Earl Cosey assaulted her, and he was placed under arrest, but the charges were later dismissed. At that time, Miller was provided with information for victims of domestic abuse.

On December 28, 1996, police were called to the duplex, where Miller was found with a cut lip and Earl Cosey had a stab wound to the chest. Both Miller and Earl Cosey refused to press charges or to be taken to the hospital. Earl Cosey later went to the emergency room for his wound. Miller also eventually went to the hospital for the facial laceration, which required stitches.

On October 3, 1997, the jury found Miller guilty of second-degree murder. During a sentencing hearing on October 27, 1997, the defense presented testimony about "Battered Women's Syndrome." The defense also provided testimony of counsellors who had worked with Miller since the date of the murder. They all presented a positive image of a woman trying to become a productive member of society. On October 28, 1997, the court sentenced Miller to 114 months with credit for time served, a downward departure from the presumptive sentence of 150 months.



Defense of Dwelling

First, Miller argues that the district court erred when it refused to give the defense-of-dwelling instruction. Minnesota statutes allow for the justifiable taking of life

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.

Minn. Stat. § 609.065 (1998). Miller argues that the recent Minnesota Supreme Court decision of State v. Hare, 575 N.W.2d 828 (Minn. 1998), should not apply to domestic abuse cases. But Miller provided no authority to support her argument. The Minnesota Supreme Court has not carved out the exception Miller requests.

Minnesota statutes permit reasonable force in self-defense "when used by any person in lawful possession of real or personal property * * * in resisting a trespass upon * * * such property." Minn. Stat. § 609.06, subd. 1(4)(1998); see also Hare, 575 N.W.2d at 832 (quoting statute). The supreme court noted in Hare that when this language is read in conjunction with section 609.065, "it is clear that the defense of dwelling defense anticipates an unauthorized intrusion into the defendant's dwelling." Hare, 575 N.W.2d at 832 (emphasis added). Thus, "when the defendant and the victim reside in the same dwelling, the defendant cannot raise the defense of dwelling defense." Id.

Miller argues that she should be entitled to the last part of section 609.065, "or preventing the commission of a felony in the actor's place of abode" even though the decedent was not technically a trespasser. She argues that domestic abuse is a social problem, is sui generis, and, thus, no one should have the "duty to retreat" before deadly force can be used in his or her own home, even when the alleged attacker is a lawful inhabitant. We understand Miller's argument, and it has logic. But the relevant caselaw leads us to conclude that a defense-of-dwelling instruction is not available under Hare when the decedent here, without dispute, was not a trespasser. We note that the supreme court did not limit the Hare decision to cohabitants who were not in a romantic relationship.

In Minnesota, there is a duty to retreat, if reasonably possible, even in one's own dwelling. See State v. Carothers, 585 N.W.2d 64, 67 (Minn. App. 1998) (holding person has duty to retreat even in place of abode), review granted (Minn. Oct. 29, 1998). The Carothers court recognized that a majority of jurisdictions have adopted the "castle doctrine," which provides that there is no duty to retreat inside one's own home. Id. For whatever reason, Minnesota is an exception to this rule. Minnesota employs a "duty to retreat", if reasonably possible, even in one's place of abode. Id. The Carothers court pointed out that this court and the supreme court have affirmed an instruction on the duty to retreat in a domestic abuse case where the use of deadly force occurred in the defendant's home. Id. (citing State v. Hennum, 428 N.W.2d 859, 866-67 (Minn. App. 1988), aff'd in part, rev'd in part, 441 N.W.2d 793 (Minn. 1989) (affirming self-defense instructions without analysis)).

Thus, we find the district court did not err when it declined to give the defense-of-dwelling jury instruction. The court did not err when it simply included the standard self-defense duty-to-retreat instruction in the jury instructions, rather than Miller's requested instruction.


Duty to Retreat

Miller argues the prosecutor committed misconduct during the closing argument claiming: (1) the prosecutor misrepresented the law on the "duty to retreat," which, in turn, confused the jury; (2) the prosecutor attempted to shift the burden on the issue of self-defense to the defense; commented indirectly on Miller's exercise of her right to remain silent; and misstated the facts. We conclude that the prosecutor's comments constituted prejudicial and reversible error when she implied that Miller's right to use deadly force, if she could not reasonably retreat, was compromised because on prior occasions Miller had not broken off her relationship with the decedent and had not sought the help from social service agencies that the prosecutor thought Miller should have. We conclude that is simply not the law.

We agree that caselaw does not support Miller's claim to a defense-of-dwelling instruction. The self-defense duty-to-retreat instruction the jury was given was the one the prosecution wanted. But at least on the instruction given, Miller was entitled to a fair trial on the issue of her duty to retreat, and the prosecutor's closing argument denied Miller the only issue left to her. On that issue we reverse and remand for a new trial.

Misconduct is harmful if it played a significant or substantial role in persuading a jury to convict. State v. VanWagner, 504 N.W.2d 746, 749 (Minn. 1993). The more serious the misconduct, the more likely it was harmful. Id. The test is whether the misconduct is harmless beyond a reasonable doubt, and the error should be examined within the context of the record as a whole. Id.

Although defense counsel did not object to the prosecutor's statements during the closing argument, appellate courts can reverse a conviction based on prosecutorial misconduct in closing argument if the statements are egregious enough and prejudicial enough. See State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995) (concluding prosecutorial misconduct not harmless beyond reasonable doubt); State v. Salitros, 499 N.W.2d 815, 820 (Minn. 1993) (stating court retains option of reversing prophylactically or in interests of justice). Appellate review may be obtained for plain error affecting substantial rights if the error had the effect of depriving the defendant of a fair trial. State v. Williams, 525 N.W.2d 538, 544 (Minn. 1994).

Miller objects to the following statements in the prosecutor's final argument:

There's another instruction which the judge will give you. The legal excuse of self-defense is available only to those who act honestly and in good faith. This includes the duty to retreat or avoid the danger if reasonably possible. So if you are getting hit, and this is happening at various places in the apartment and it's happening over a period of time and some of your friends come up to visit you from downstairs, you ask them for help. If there's another person in the back bedroom while this is going on you ask them for help. If you are in the kitchen and you are being attacked, if you are, here's the back door. Police found it unlocked. Stairwell goes downstairs, and you have the option of running outside or into the downstairs apartment. That back door is right there. You also have the back bedroom where B.C. is apparently watching television, you also have an exit to this bathroom and through that bathroom you can get into this bedroom and out the front door. You also have this exit into the dining room. You have other options. You can run. You can also leave before it gets to this point if, in fact, you've been hit a number of times over the evening. You can leave. You can also prosecute the first time it happens. You can seek protection from the police, as Donna Miller had done on other occasions. She had a duty to retreat or avoid the danger if reasonably possible. And if we do believe that she had been punched and had fallen down the stairs earlier that evening and returned to the danger, what about this?

* * * *

Now, they may want you to believe that on the prior occasion she stabbed him in self-defense also. We now have her involved in two stabbings with the same victim, and we are supposed to believe they were both in self-defense. Does she have some other choices? Doesn't she have some obligation to do something besides stab somebody when they attack her? Hasn't she been referred to an advocate on two separate hospital visits? Hasn't she failed to use the resources offered to her by the system? Whole bunch of numbers on this blue card to get help. Hasn't she refused assistance? Hasn't she instead continued and escalated the violence?

(Emphasis added.)

The duty to retreat refers to whether a defendant has a reasonable option to avoid danger at the time she is being confronted, not whether a defendant had reasonable options to avoid a potentially dangerous boyfriend days or weeks prior to a confrontation. See State v. Austin, 332 N.W.2d 21, 24 (Minn. 1983) (determining jury could have believed defendant had options to escape but instead made aggressive choice to confront victim).

In the jury instructions, the district court included the prosecutor's requested instruction on the duty to retreat. We know this instruction was crucial to the jury deliberation. After being out for a few hours, the jury sent a question to the judge which read: "Is there a legal definition for `retreat' as used in the self-defense instructions?" The judge, after an in-chambers discussion about applicable law, instructed the jury to rely on their experience, good judgment, and common sense and sent them back to deliberate. No supplemental jury instruction on the duty to retreat was given.

The jury's question makes it clear that the prosecution likely confused and misled the jury into believing that Miller should have left the relationship or sought some kind of outside assistance long before this incident and since Miller had not, that action or inaction somehow legally prevented her from the right to use deadly force to avoid an assault upon herself. That is the plain and significant error committed by the state.

In her closing statement, the prosecutor specifically listed a number of ways in which she claimed that Miller could have avoided the confrontation with Earl Cosey including: (1) prosecuting him the first time he hit her; (2) asking for help prior to the stabbing; (3) using the phone numbers given to her when she went to the hospital on November 7, 1996; and (4) leaving the duplex after she was pushed down the stairs earlier in the day. These statements to the jury clearly imply that Miller's duty to retreat that evening, which we acknowledge that she had, somehow included a legal obligation to take action days and weeks prior to February 14, for instance, to stabilize or to leave her relationship with Cosey, and that since she had not, her normal right of self-defense was negated. That implication to the jury by the state was an erroneous statement of the law. Miller's duty to retreat arose, no more no less, when Earl Cosey began to hit her the evening of February 14. It did not arise days or weeks before. And that duty to retreat, although there, is superseded if there is no reasonable way that a retreat can be made without exposing one's self to risk of serious harm or death from an aggressor. The district court correctly instructed the jury regarding Miller's duty to retreat:

The legal excuse of self-defense is available only to those who act honestly and in good faith. This includes the duty to retreat or avoid the danger if reasonably possible.

(Emphasis added.) This instruction is identical with 10 Minnesota Practice, CRIMJIG 7.08 (1990).

This is Miller's argument. The state had a right to argue to the jury for a particular interpretation of the facts, but the state does not have the right to attempt to cut off a defendant's theory of the case, here self-defense, by misstating the law.

The prosecutor's closing argument directly implied that Miller could not argue that it was not reasonably possible to retreat. The prosecution argued, with convoluted logic, that Miller did not have the right of self-defense that night, even if she was in fear of her life, because of something Miller did or did not do days and weeks before. Because the jury indicated confusion on this exact issue, it highlighted the prosecutor's error, and Miller was deprived of a fair trial. Given these circumstances, we cannot say that this error is harmless beyond a reasonable doubt.[1] See Porter, 526 N.W.2d 359, 365 (concluding prosecutor's misconduct not harmless beyond reasonable doubt). Miller is entitled to a new trial.

Reversed and remanded.

SHORT, Judge (dissenting)

I respectfully dissent. The trial court properly instructed the jury and there is sufficient evidence to sustain the conviction. See State v. Hare, 575 N.W.2d 828, 832 (Minn. 1998) (holding defense-of-dwelling instruction not available when defendant and victim are cohabitants); State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988) (stating court will not disturb jury verdict if jury could reasonably conclude defendant was guilty).

Miller concedes the prosecutor's final argument on the duty to retreat was legally correct. Her appeal is focused on the prosecutor's closing comments about options to avoid danger prior to a confrontation. Although those comments about whether she reasonably feared great bodily harm may have caused some jury confusion, Miller failed to object or request a curative instruction. Given the trial court's jury instructions and the defense's vehement argument that the state failed to meet its burden of proving that Miller did not act in self-defense, I agree with the trial court's assessment that there was no improper conduct. See State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984) (noting determination of prosecution's misconduct normally left to discretion of trial court). Furthermore, the alleged prosecutorial misconduct, when viewed in light of the whole record, is not so prejudicial as to deny Miller's right to a fair trial. See State v. Ashby, 567 N.W.2d 21, 28 (Minn. 1997) (holding prosecutor's conduct was harmless error where jury verdict was supported by strength of evidence against defendant). Under these circumstances, I would affirm.

[1] Because we conclude that the prosecutor committed this plain error, we do not discuss the remaining allegations of prosecutorial misconduct.