This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-466

 

State of Minnesota,

Respondent,

 

vs.

 

Darrick James Bellecourt,

Appellant.

 

Filed February 7, 2006

Reversed and remanded

Kalitowski, Judge

 

Crow Wing County District Court

File No. K8-03-167

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Donald F. Ryan, Crow Wing County Attorney, Candace Prigge, Assistant County Attorney, County Service Building, 322 Laurel Street, Brainerd, MN 56401 (for respondent)

 

Scott G. Swanson, Special Assistant State Public Defender, MSL #132, University of St. Thomas School of Law, 1000 LaSalle Avenue, Minneapolis, MN 55403 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant Darrick James Bellecourt challenges his conviction and sentence for second-degree murder and the postconviction order denying his challenge to the conviction and sentence.  Appellant argues that the district court (1) abused its discretion and violated appellant’s due process rights in denying appellant’s request for a jury instruction on a lesser-included offense; (2) abused its discretion in denying appellant’s request to modify the self-defense jury instruction; and (3) abused its discretion in refusing to grant appellant a downward departure in his sentence.  Because appellant was entitled to a jury instruction on a lesser-included offense, we reverse and remand for a new trial.

D E C I S I O N

 

            Normally, “[t]he decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted).  But we use the standard of review for direct appeals when, as here, appellant first files a direct appeal, which this court stays to allow appellant to file a subsequent petition for postconviction relief.  See Santiago v. State, 644 N.W.2d 425, 439 (Minn. 2002).

I.

 

            Although we review the “denial of a requested lesser-included offense instruction under an abuse of discretion standard[,] . . . where the evidence warrants a lesser-included offense instruction, the trial court must give it.”  State v. Dahlin, 695 N.W.2d 588, 597 (Minn. 2005) (quotations omitted).  The evidence warrants an instruction when “1) the lesser offense is included in the charged offense; 2) the evidence provides a rational basis for acquitting the defendant of the offense charged; and 3) the evidence provides a rational basis for convicting the defendant of the lesser-included offense.”  State v. Hannon, 703 N.W.2d 498, 509 (Minn. 2005).

            In evaluating the evidence, the district court must look at the evidence in the light most favorable to the party requesting the lesser-included offense instruction.  Id. at 510.  “[W]hen evidence exists to support the giving of the instruction, it is an abuse of discretion for a trial court judge to weigh the evidence or discredit witnesses and thereby deny an instruction.”  Id. (quoting Dahlin, 695 N.W.2d at 598).

            Here, appellant argues that the district court abused its discretion when it refused to instruct the jury on the lesser-included offense of first-degree heat-of-passion manslaughter.  In light of the standard that the Minnesota Supreme Court has articulated in Dahlin, 695 N.W.2d at 597, and Hannon, 703 N.W.2d at 509, we agree.

The postconviction court properly determined that first-degree heat-of-passion manslaughter is a lesser-included offense of second-degree murder.  See Stiles v. State, 664 N.W.2d 315, 322 (Minn. 2003) (assuming without deciding that heat-of-passion manslaughter is a lesser-included offense of murder); State v. Leinweber, 303 Minn. 414, 415, 228 N.W.2d 120, 122 (1975) (concluding that it was prejudicial error to deny defendant’s request for a jury instruction on first-degree manslaughter where the defendant was charged with second-degree murder and the jury found him guilty of third-degree murder); see also Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986) (concluding that first-degree manslaughter is a lesser-included offense of first-degree murder); State v. Galvan, 374 N.W.2d 269, 271 (Minn. 1985) (stating the first-degree manslaughter is a lesser-included offense of second-degree felony murder).  But see State v. Fulford, 290 Minn. 236, 241, 187 N.W.2d 270, 274 (1971) (stating that heat-of-passion manslaughter is not a lesser-included offense of second-degree murder).[1] Thus, the district court abused its discretion in denying appellant’s request for an instruction on first-degree manslaughter if the evidence provides a rational basis for acquitting appellant of second-degree intentional murder and convicting him of first-degree heat-of-passion manslaughter.  See Hannon, 703 N.W.2d at 509. 

A person is guilty of first-degree manslaughter if that person “intentionally causes the death of another person in the heat of passion provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances.”  Minn. Stat. § 609.20(1) (2002).  Thus, the test here is not whether the evidence was sufficient for a jury to find that appellant intentionally killed without premeditation, but instead, whether a rational basis exists for the jury to find (1) that appellant intentionally killed in the heat of passion; and (2) that appellant’s passion was provoked by such words or acts of another as would provoke a person of ordinary self-control under the circumstances.  See Hannon, 703 N.W.2dat 512; State v. Carney, 649 N.W.2d 455, 460-61 (Minn. 2002).  The court must evaluate the record as a whole, not simply the defendant’s own testimony.  Dahlin, 695 N.W.2d at 600. 

            The first element of first-degree manslaughter is a subjective inquiry that focuses on the emotional state of the defendant.  State v. Quick, 659 N.W.2d 701, 711 (Minn. 2003).  Heat of passion involves “[r]age, terror, or furious hatred suddenly aroused by some immediate provocation, [usually] another person’s words or actions.”  Id. at 714 n.4 (citing Black’s Law Dictionary 726 (7th ed. 1999)).  Thus, when a defendant is in the heat of passion, his reason is clouded and his willpower weakened.  Id. at 711.  Anger alone is insufficient to find heat of passion.  Id.  Provocation, the second element, is an objective inquiry.  Id.

            The Minnesota Supreme Court has concluded that the evidence does not support a finding of heat of passion when the defendant provokes the situation, when the defendant acts in response to name calling and a couple slaps, or when the progression of events takes place over several hours.  See, e.g., Stiles, 664 N.W.2d at 322 (defendant was aggressor); Carney, 649 N.W.2d at 462 (events occurred over two hours); Fulford, 290 Minn. at 241, 187 N.W.2d at 274 (defendant was called a name and slapped a couple times).  But the evidence presented here is distinguishable from those situations.

            Here, we conclude that the evidence provides a rational basis for the jury to find that the victim was the initial aggressor and that the entire altercation lasted less than two minutes.  Appellant and several witnesses testified at trial that the victim attacked appellant immediately after appellant entered the apartment, thus provoking the altercation.  Additional testimony indicates that the victim’s initial strike caused appellant to “[fly] into the wall.”  Appellant further testified that he tried to stand, but with each attempt he was knocked to the floor.  Another witness testified that the victim hit appellant “[p]robably three or four” times and then appellant pulled out his gun.  Appellant stated that at that point:

The only thing I was thinking . . . was either these kids are going to beat me to death or I’m going to, or they’re going to try to get the gun away from me and shoot me because people were kicking at the gun, grabbing at the gun, and trying to wrestle it out of my arm and out of my hand. . . . I was afraid for my life.

 

Another witness testified that the victim continued to hit appellant even after appellant fired the first, second, and third gunshots.

            The postconviction court concluded that the evidence showed that appellant’s actions “were controlled and deliberate and not the result of passion” because appellant testified that he paused before firing the gun.  But two witnesses testified that appellant did not pause and instead pulled out the gun immediately and shot it.  Additionally, both appellant and another witness testified that the sequence of events occurred within two minutes or less.

[W]hen the defendant’s own testimony does not support the theory that he is guilty only of a lesser offense, a lesser-included offense instruction is not precluded if the record on the whole provides a rational basis for acquitting the defendant of the charged offense and convicting him of the lesser offense.

 

Dahlin, 695 N.W.2d at 600 (quotations omitted).  Thus, viewing the evidence in the light most favorable to appellant, we conclude that a jury could rationally conclude that, given the quick progression of events, appellant’s actions were not “controlled and deliberate.”

            Respondent argues that a lesser-included offense instruction was not appropriate because the postconviction court’s finding that appellant’s actions were not the result of passion was not clearly erroneous.  But the standard is not whether the postconviction court clearly erred.  See Hannon, 703 N.W.2d at 511.  Rather, the supreme court has directed this court to determine whether the evidence, when viewed in the light most favorable to appellant, created a rational basis for the jury to find that appellant killed the victim in the heat of passion.  Id.  If a rational basis existed, the district court abused its discretion.  See Dahlin, 695 N.W.2d at 597, 601.

            Respondent further argues that “there was not credible evidence showing there was sufficient provocation to cause an ordinary person to lose control.”  But again, this is not the correct standard.  The supreme court stated in Hannon that the district court abuses its discretion when it weighs evidence or discredits witnesses when deciding whether to give a jury instruction.  703 N.W.2d at 510.

            Viewing the evidence in the light most favorable to appellant, the evidence provides a rational basis for the jury to conclude that appellant acted in the heat of passion and that his passion was provoked.  We therefore conclude that the evidence warrants an instruction on a lesser-included offense and that the district court abused its discretion when it denied appellant’s request for the instruction.

            Appellant also argues that he is entitled to a lesser-included offense jury instruction as a matter of due process.  Because we reverse on other grounds, we do not address appellant’s constitutional argument.  See State v. Hoyt, 304 N.W.2d 884, 888 (Minn. 1981) (stating that courts do not decide constitutional questions except when necessary to dispose of a case).

II.

            Although we are remanding for a new trial, we address appellant’s argument regarding modification of the self-defense jury instruction because the issue may reoccur.  “The refusal to give a requested jury instruction lies within the discretion of the district court.”  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).  We review the instructions as a whole and will not reverse absent an abuse of discretion.  State v. Kuhnau, 622 N.W.2d 552, 555-56 (Minn. 2001).  The focus of the analysis is on whether the refusal resulted in error.  Id. at 555.  “An instruction is in error if it materially misstates the law.”  Id. at 556.  “[T]he court need not give the requested instruction if it determines that the substance of the request is contained in the court’s charge.”  State v. Persitz, 518 N.W.2d 843, 848 (Minn. 1994).

            Here, appellant argues that the district court abused its discretion in denying, in part, his proposed addition to the self-defense instruction.  Appellant sought an instruction on self-defense against multiple attackers and proposed that the court (1) add language to the first paragraph; and (2) add “at the hands of [decedent] or by other persons with [decedent]” to the sentence in paragraph four.  The court granted appellant’s first request, but ruled that the second modification was unnecessary and instructed the jury as follows:

            No crime is committed when a person takes the life of another person, even intentionally, if the defendant’s action was taken in resisting or preventing an offense by one or more individual [sic] that the defendant reasonably believed exposed the defendant to death or great bodily harm.

 

            “Great bodily harm” means bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ, or other serious bodily harm.

 

            In order for a killing to be justified for this reason, 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 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.

 

            The State of Minnesota has the burden of proving beyond a reasonable doubt that defendant did not act in self-defense.

 

            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.)

            Because the instructions, read as a whole, directed the jury to consider self-defense against multiple attackers, we conclude the district court did not abuse its discretion in denying appellant’s request to further modify the jury instructions.  See Persitz, 518 N.W.2d at 848.

            Finally, appellant challenges his sentence, arguing that the district court should have granted him a downward departure.  Because we reverse and remand for a new trial, we do not address this issue.

            Reversed and remanded.