This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-01-1814

 

In the Matter of the Death of
William Gast, Sr.,
also known as "Blue" Gast,
in Crow Wing County, Minnesota,
on February 24, 1992.

 

Filed May 21, 2002

Affirmed

Peterson, Judge

Crow Wing County District Court

File No. C3011027

John Remington Graham, 180 Haut de la Paroisse, St-Agapit, Quebec GOS 1ZO Canada (for appellants John R. Morgan, et al.)

 

            Considered and decided by Halbrooks, Presiding Judge, Peterson, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

This appeal is from an order denying a petition for an order to convene a grand jury and appoint a special prosecutor to investigate the 1992 death of William Gast Sr. Appellants, members of an ad hoc citizens committee, argue that the district court abused its discretion by denying the motion because their petition established facts that suggest a murder was committed, that police covered up the crime, and that the present county attorney has a conflict of interest that prevents an adequate investigation.  We affirm.

FACTS

            William Gast Sr. died on February 24, 1992, in Crow Wing County.  The cause of death was a gunshot wound to the head.  The Crow Wing County Sheriff concluded that Gast had committed suicide.

At the time of Gast’s death, John Remington Graham, the attorney for appellants in this case, was the Crow Wing County Attorney.  After Graham left office in January 1995, a citizens committee was formed to investigate Gast’s death.  The citizens committee believed that Gast had been murdered because he possessed information concerning the involvement of wealthy individuals and Crow Wing County public officials in cocaine trafficking in northern Minnesota.  After the citizens committee was formed, the Crow Wing County Sheriff reopened the investigation into Gast’s death and requested assistance by the Bureau of Criminal Apprehension (BCA).  The BCA agreed with the sheriff’s conclusion that Gast’s death was a suicide.

In 1997, the citizens committee filed a petition in district court seeking an order convening a grand jury on the matter of Gast’s death and appointing a special prosecutor to present the case to the grand jury.  The district court denied the petition.  The citizens committee then filed a petition in this court for a writ of mandamus compelling the district court to convene a grand jury and appoint a special prosecutor.  This court denied mandamus.

In April 2001, the citizens committee filed another petition in district court, again seeking an order convening a grand jury and appointing a special prosecutor.  By order filed July 17, 2001, the district court denied the petition.  This appeal is from the July 17, 2001, order. 

D E C I S I O N

            Minn. Stat. § 388.12 (2000) states:

            The judge of any district court may by order entered in the minutes at any term of court appoint an attorney of such court to act as, or in the place of, or to assist, the county attorney at such term, either before the court or grand jury.  The person so appointed shall take the oath required by law of county attorneys and thereupon may perform all duties at such term of court, but shall receive no compensation where the county attorney is present at such term, except by the county attorney’s consent, and to be paid from the county attorney’s salary.

 

The supreme court has suggested that petitioning the district court to appoint a special prosecutor may be a remedy available to a private citizen “aggrieved * * * when a prosecutor refuses to commence a prosecution.”  State ex rel. Wild v. Otis, 257 N.W.2d 361, 364-65 (Minn. 1977). 

Neither Minn. Stat. § 388.12 nor Otis set forth the showing required before a special prosecutor will be appointed at the request of a private citizen.  But when used in a statute, “may” is permissive, Minn. Stat. § 645.44, subd. 15 (2000), which means that the district court has discretion to order the appointment.  And in holding that a private citizen cannot initiate or maintain a criminal prosecution, the Otis court expressed concern over the “grave danger of vindictive use of the processes of the criminal law” and the potential for “chaos in the administration of criminal justice” if private citizens were allowed to initiate and maintain criminal prosecutions.  Otis, 257 N.W.2d at 365.  This concern suggests that a strong showing for appointment should be required before concluding that the district court abused its discretion by declining to appoint a special prosecutor at the request of a private citizen.

            “The grand jury shall be summoned and convened whenever required by the public interest or whenever requested by the county attorney.”  Minn. R. Crim. P. 18.01, subd. 1.  There is no formal mechanism for a private citizen to raise a matter before the grand jury.  But it may be permissible for a private citizen to try to appear as a witness before the grand jury and attempt to persuade it to indict.  Otis, 257 N.W.2d at 364.     Appellants summarize the factual basis for their request as follows:

[T]he sheriff’s department fabricated a 20-degree angle in the head wound to accommodate a suicide scenario stated in the sheriff’s investigation report.  But the head wound described in the sheriff’s investigation report was contrary to ballistic reality.  And worse yet, the 20-degree angle was never observed and never was.  Given the actual head wound as described by the pathologist who did the autopsy, and given other known facts, it was physically and mathematically impossible for Mr. Gast to have committed suicide.  Shockingly, the coroner signed the death certificate, indicating suicide as the cause of death, before the autopsy was signed and filed by the independent pathologist.  When questioned by [the chairman of the citizens committee] and others, the coroner came up with a new suicide scenario, which, upon scrutiny, was impossible to replicate physically, and again could not withstand mathematical analysis.

 

            Appellants contend that Gast was killed by a bullet that entered at his right temple and exited at his left temple, which is consistent with the wound described in the autopsy report.  But appellants argue that it was physically and mathematically impossible for Gast to use the rifle found lying next to his body to inflict the head wound that caused his death because Gast could not have reached the trigger while holding the rifle perpendicular to his head.  Therefore, appellants conclude, Gast’s death could not have been a suicide.

To support their argument that Gast could not have reached the trigger of the rifle while holding the rifle perpendicular to his head, appellants rely on geometric principles and their own empirical observations of a number of individuals the same size as Gast.  Appellants explain their argument using a diagram drawn by a deputy sheriff who attended Gast’s autopsy.  The diagram, which appears in the appendix, shows that the distance from the entry wound on Gast’s head to the first joint of the index finger of Gast’s right hand is 84 centimeters, or 33.07 inches.  We have added to the diagram the triangle that appellants contend proves that suicide was impossible.  (The diagram also shows an exit wound that is higher on the skull than the entry wound, which is not consistent with the autopsy report’s description of an exit wound directly across from the entry wound.)

Appellants claim to have made empirical observations of a number of individuals about the same height as Gast who had fairly normal body proportions and who measured “about 33 inches from a point on the right temple about 2.25-2.5 inches above the opening of the right ear to the first joint of the index finger on the right hand.”  Appellants stated in their petition to the district court that these observations revealed that

[a]ll such individuals measured about 8 inches from the said point on the right temple to the base of the neck on the right side, and about 23 inches from the base of the neck on the right side to the base of the right thumb.[1]

 

The distance from the muzzle to the trigger of the rifle found with Gast is 24.75 inches.  Using this distance and the eight-inch distance from the temple to the neck that they had observed, appellants constructed a hypothetical right triangle with a 24.75-inch side perpendicular to Gast’s head and an eight-inch side running from the temple to the base of the neck.  Appellants then applied the Pythagorean theorem to determine that the hypotenuse of this triangle, which would run from the base of the neck to the rifle trigger, is 26 inches long.  Appellants concluded that because the distance from the base of the neck to the trigger is 26 inches, but, on the individuals they observed, the distance from the base of the neck on the right side to the base of the right thumb is 23 inches, it was physically and mathematically impossible for Gast to reach the trigger of the rifle while holding it perpendicular to his head.

We are not persuaded that the evidence that appellants presented to the district court demonstrates the physical and mathematical impossibility that they claim.  The most significant problem with their conclusion is that it is based on their empirical observation that individuals the size of Gast measured about 23 inches from the base of the neck on the right side to the base of the right thumb.  Even if this observation is correct, it is not apparent why the distance to the base of the thumb is the relevant distance.  If Gast were holding the rifle to his head, it would seem highly improbable that he would be using the base of his thumb, rather than the end of his thumb, to move the trigger.  The length of his thumb would eliminate a substantial portion, if not all, of the three-inch shortfall appellants claim. 

This problem becomes apparent when appellants’ empirical observations are combined with the measurement in the diagram, which shows that the distance from the right temple to the first knuckle of the right index finger is 84 centimeters, or 33.07 inches.  If the distance from the right temple to the base of the neck is eight inches, the remaining distance to the first knuckle of the right index finger is slightly more than 25 inches, not the 23 inches that appellants used in their calculations.

Also, appellants’ calculations assume that the trigger of the rifle would be directly on the side of the triangle that is perpendicular to the head.  But if the rifle were held so that the barrel was perpendicular to the head, the trigger would be below the side of the triangle, and that would reduce the distance from the base of the neck to the trigger.

These problems with appellants’ calculations persuade us that they did not demonstrate that it was physically and mathematically impossible for Gast to use the rifle found lying next to his body to inflict the head wound that caused his death.  We, therefore, conclude that they did not make the strong showing required for appointment of a special prosecutor, and the district court did not abuse its discretion when it denied appellants’ petition.

Affirmed.