This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,

Phillip Eugene Perkins,

Filed September 14, 1999
Reversed and remanded
Toussaint, Chief Judge

Hennepin County District Court
File No. 96075550

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103, and

Amy Klobuchar, Hennepin County Attorney, Beverly Jean Benson, Assistant Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Bradford Scott Delapena, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Toussaint, Presiding Judge, Peterson, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant Philip Eugene Perkins contends the trial court erred when it determined that there was sufficient evidence to support a second-degree murder conviction and that he failed to establish the defense of not guilty by reason of mental illness. Contained within his claim of insufficiency of evidence are two additional assertions that the trial court erred: (1) with its consideration of a report from a court-ordered psychological exam that contained admissions of guilt, in the guilt phase of the bench trial; and (2) by giving substantive consideration to out-of-court statements. Because we conclude the trial court committed reversible error when it considered the psychological report, we reverse and remand for a new trial.


Appellant had worked as a security guard at a vacant building, formerly the Drake Hotel, in Minneapolis, for about a week before another security guard was found dead in the basement. The victim had multiple stab wounds in his neck and head, as well as some defensive wounds on his hands. On top of a locker about 40 feet from the body, police found a knife and blue rubber gloves, on which there were traces of the victim's blood.

Immediately after a third security guard reporting for duty and finding the body, all outside doors to the building were locked. The in-coming guard could not enter because he did not have a key - the one key the three alternating security guards shared had been missing since the end of appellant's shift three days prior to the incident. Ultimately, a set of keys was provided. Appellant, who was homeless, had also been seen in the building at times when he was not supposed to be there.

During the first trial a mistrial was declared. An examination, according to Minn. R. Crim. P. 20, was ordered. Appellant was again found competent. At a second trial appellant waived a jury trial and agreed to a bifurcated bench trial with stipulated facts on the issue of guilt or innocence, and additional stipulated facts as well as live testimony on the defense of mental illness. The stipulated record for the guilt phase included the testimony and exhibits from the mistrial, together with several police reports. Immediately prior to rendering its finding of guilt, the trial court stated that it had mistakenly read the Rule 20 report, thinking that it had been submitted for consideration for the first part of the trial. The state did not object to admitting the report on the issue of guilt. Defense counsel also assented to the trial court considering it, without consulting appellant. This report contained numerous references to appellant's admissions of guilt, which were not a part of the stipulated evidence submitted to the trial court in the guilt phase of the trial.

The trial court found appellant guilty. In its findings of fact, stated orally at the hearing, as well as in her written order, the trial court relied, in part, on the Rule 20 report. At the hearing, defense counsel raised no objection to the substantive use of the prior statements.


It is well established that a criminal defense attorney cannot admit his or her client's guilt to the fact-finder without first obtaining the client's consent to this strategy. State v. Wiplinger, 343 N.W.2d 858, 860 (Minn. 1984). To admit guilt without consent is deemed ineffective assistance of counsel and grounds for a new trial. State v. Provost, 490 N.W. 2d 93, 97 (Minn. 1992). It is so antithetical to a fair trial for counsel to admit a client's guilt without consent that a new trial is the remedy "even if it can be said that the defendant would have been convicted in any event." Wiplinger, 343 N.W.2d at 861 (citation omitted).

Appellant did not object, and it is unclear whether he even knew the contents of the report. Cf. Provost, 490 N.W.2d at 97 (appellant deemed to have acquiesced when defense counsel consistently throughout the trial took the position that appellant had caused victim's death, and at no time did appellant object).

Consideration of the report also violated court rules pertaining to the use of statements made during court-ordered mental examinations. See Minn. R. Crim. P. 20.02, subd. 6(3) ("statements made * * * for the purpose of the [court-ordered] mental examination * * * shall be admissible against the defendant only at that stage of the trial relating to the defense of mental illness") (emphasis added); see also State v. Lefthand, 488 N.W.2d 799, 801 (Minn. 1992) ("On its face, Rule 20 precludes the use of statements made by defendants in the course of the court-ordered mental examinations upon the issue of guilt.").

Because we conclude that the court committed reversible error by including the report, we decline to address the other issues raised on appeal.

Reversed and remanded.