State v. Mouelle
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State v. Mouelle
Opinion of the Court
*710Appellant Vern Jason Mouelle was found guilty by a jury of first-degree premeditated murder and first-degree premeditated murder of an unborn child. In this direct appeal, Mouelle asserts four claims. He first contends that structural error occurred when the district court judge presided over Mouelle's jury trial after hearing a comment by defense counsel during an ex parte conversation that suggested that Mouelle might commit perjury. Mouelle next argues that his right to effective assistance of counsel under the Sixth Amendment to the United States Constitution was violated when defense counsel disclosed client communications during the ex parte conversation with the district court judge. Mouelle further claims that the district court committed plain error in its jury instructions. Finally, he contends that the sentence to life imprisonment without the possibility of release for his conviction of first-degree murder of an unborn child was not authorized by Minnesota Statutes section 609.106 (2018).
Although the State contests the first three claims, it concedes that Mouelle's sentence for his conviction of first-degree murder of an unborn child is not authorized by Minnesota Statutes section 609.106. For the reasons explained below, we affirm Mouelle's convictions, reverse his sentence for first-degree murder of an unborn child, and remand to the district court for further sentencing proceedings consistent with this opinion.
FACTS
At about 3 p.m. on January 24, 2017, Senicha Lessman was found by her mother, bloody and unconscious on the floor of her bedroom. Lessman's mother immediately called 911, removed a bloody cloth that had been lodged in Lessman's throat, and attempted resuscitation. Emergency responders arrived and made additional efforts to save Lessman's life, but they were unsuccessful. Lessman, age 25, was 32 weeks pregnant. She and her unborn child were pronounced dead at the scene.
Lessman had been stabbed in the neck. The stab severed her external carotid artery and punctured her airway. The medical examiner determined Lessman's cause of death to be "complex homicidal violence" as a result of the blood-loss from the stab wound and asphyxiation from the cloth lodged in her airway. The cause of death for the unborn child was determined to be the death of the mother, Lessman.
The Eagan Police Department investigation immediately focused on Mouelle, the unborn child's father, because his vehicle had been seen parked in front of the Lessmans' home that same afternoon. The police searched Mouelle's vehicle that evening and found numerous items from the crime scene. These items included Lessman's mobile phone, her bloody pajama shirt and pants, Lessman's Minnesota Vikings blanket, a blood-stained towel, a green wastebasket, and a bathtub drain plug. Police also found empty packaging and a store receipt for the folding knife used to stab Lessman. The knife itself was found in a drawer in Mouelle's bedroom the next morning.
Forensic searches of Mouelle's mobile phone revealed numerous internet searches in December 2016 related to kidnapping, missing persons, and police investigation techniques. On the day of the murder, numerous other internet searches were made, including searches for: "How long would it take to die if one of your external jugular vein[s] was slit"; "How much time does it take to knock someone out with a rear naked choke"; "Can you kill a person with a rear naked choke";
*711"How do police find and use fingerprints to catch criminals"; and "DNA forensic testing and use of DNA rape kits in cases of rape and sexual assault." Mouelle's fingerprints and DNA were found on items at the crime scene, and his DNA matched bodily fluids gathered from the autopsy conducted on Lessman's body.
Mouelle's text messages during Lessman's pregnancy showed that he did not want her to keep the baby. He frequently implored Lessman to consider an abortion and questioned her readiness for motherhood. In text messages to a friend, Mouelle declared, "I ain't having a baby with no autism bitch," and "They will not get me on child support."
Following the police investigation, a grand jury indicted Mouelle for several offenses, including first-degree premeditated murder and first-degree premeditated murder of an unborn child. See
Immediately before opening statements, an ex parte conversation occurred between Mouelle's trial counsel ("Counsel") and the district court judge in chambers in the presence of the court reporter.
The State gave its opening statement and, as promised, the court took a brief recess. Counsel then gave an opening statement. After the State rested its case, Mouelle chose to testify. Counsel presented Mouelle's testimony in the traditional question-and-answer format.
Mouelle admitted that he was present when Lessman was killed, but testified that a secret boyfriend named "Anthony" was the culprit. He explained that Anthony and Lessman had been seeing each other, upsetting Mouelle. Mouelle admitted buying the knife and conducting the incriminating internet searches, but claimed that he was preparing to confront Anthony that day. When Anthony showed up at the Lessmans' house that afternoon, Mouelle left Anthony and Lessman inside to go to his car. Mouelle said that Anthony came out of the house to tell him that he had cut Lessman and that he needed help cleaning up the blood. Anthony assured Mouelle, however, that Lessman was okay, and Mouelle then brought the bloody items out to his vehicle.
*712Despite Mouelle's insistence that Anthony and Lessman were secretly seeing each other in December 2016 and January 2017, only one mention of Anthony appears in any of the text messages or social network profiles gathered from Lessman's electronic devices. The lone mention of Anthony was in a text message exchange between Mouelle and Lessman in which Lessman uncharacteristically called Mouelle a racial epithet and taunted Mouelle that he was not the father of her baby.
After Mouelle's testimony concluded and the parties rested, the district court instructed the jury on the law. In reading its written instructions, the district court correctly stated that "[u]nder the laws of Minnesota, a person causing the death of an unborn child, with premeditation and with the intent to kill the unborn child or another, is guilty of murder of an unborn child in the first degree." The district court, however, misread one of the written instructions when it said, "[i]f the defendant acted with premeditation or with the intent to cause the death of a person other than the unborn child, the element of premeditation and intent to cause death is satisfied." (Emphasis added.) The written instruction actually read "[i]f the defendant acted with premeditation and with the intent to cause the death of a person other than the unborn child[.]" (Emphasis added.) The jury was provided a copy of the written instructions. The district court's oral and written jury instructions also omitted a paragraph from the model jury instructions concerning first-degree murder of an unborn child, which resulted in instructions that stated, without qualification, "If you find that any element, other than premeditation, has not been proven beyond a reasonable doubt, the defendant is not guilty of this charge." Mouelle did not object to these instructions.
The jury found Mouelle guilty on all counts, and he was sentenced immediately to life-imprisonment terms, without the possibility of release, for each of the first-degree murder offenses. Mouelle requested that his sentences be imposed concurrently. The district court imposed consecutive sentences, explaining that there were "two separate and distinct lives lost, and there must be a penalty for each."
Mouelle directly appeals his conviction to this court as of right.
ANALYSIS
I.
Mouelle first contends that a structural error occurred when Counsel's ex parte reference to Nix v. Whiteside ,
A judge may not preside over any criminal proceeding if she is disqualified from doing so under the Code of *713Judicial Conduct. Minn. R. Crim. P. 26.03, subd. 14(3). Whether a judge has violated the Code is a question of law that we review de novo. State v. Dorsey ,
In deciding whether disqualification is required, the relevant question is "whether a reasonable examiner, with full knowledge of the facts and circumstances, would question the judge's impartiality." In re Jacobs ,
To evaluate whether a "reasonable examiner, with full knowledge of the facts and circumstances, would question the judge's impartiality" we take the perspective of "an objective, unbiased layperson." Jacobs ,
Mouelle contends that Counsel's disclosure "tainted the judge who was tasked with deciding evidentiary issues." The unspoken assumption underlying this contention is that a reasonable examiner loses confidence in a district court's impartiality whenever the court learns information that is prejudicial to the defendant. This theory, however, does not overcome the presumption that district courts set aside collateral knowledge and "approach every aspect of each case with a neutral and objective disposition." Id . A district court judge does not become partial, and thus disqualified from presiding over a criminal trial, simply because she has knowledge of information that reflects negatively on a defendant. Cf. id. at 253 (explaining that it was "not the fact that [the judge] knew" certain facts that deprived the defendant of an impartial fact finder). In criminal proceedings, reviewing evidence that is potentially prejudicial to the defendant is a routine, and in fact essential, function of a district court judge.
In a typical criminal case, the district court judge must consider pretrial motions that challenge items of evidence that may reflect adversely on the defendant. A motion to exclude a defendant's prior criminal history from presentation at trial, for instance, often involves highly prejudicial evidence. Sometimes, the challenged evidence is even incriminating-as with disputes concerning the admission of a defendant's recorded confession under the *714Miranda rule.
Applying these principles here, we conclude that an objective, unbiased layperson with full knowledge of the facts and circumstances would not question the district court's impartiality. After the ex parte conversation ended, Counsel's concerns were never again mentioned during the remainder of the jury trial. Critically, the jury-the fact finder here-was never exposed to the concerns about Mouelle's testimony that Counsel raised during the ex parte conversation.
II.
Mouelle next asserts that his right to effective assistance of counsel under the Sixth Amendment was violated. According to Mouelle, Counsel's performance during the ex parte conversation with the district court fell below an objective standard of reasonableness because it violated the ethical duties of loyalty and confidentiality that Counsel owed Mouelle. He also argues that the deficiencies in Counsel's performance *715were prejudicial because they compromised the fairness of the proceedings.
The Sixth Amendment provides to criminal defendants the right to the assistance of counsel at trial. State v. Rhodes ,
Mouelle's ineffective-assistance-of-counsel claim is governed by the two-pronged test set forth in Strickland ,
Application of the Strickland test involves a mixed question of law and fact, which we review de novo. State v. Mosley ,
To support his theory that the fairness of the proceedings was compromised when Counsel raised the potential perjury issue to the presiding judge, Mouelle relies upon the Ninth Circuit's opinion in Lowery v. Cardwell ,
Mouelle's reliance on Lowery is misplaced. Critically, Lowery concerned a bench trial, not a jury trial.
Here, no similar problem was called to the attention of the fact finder. The record shows that Mouelle had a full and fair opportunity to present his testimony to the jury. Mouelle further acknowledges that Counsel presented his testimony in the typical question-and-answer format. Nothing in the record shows that the jury, as the finder of fact, was even aware of, or affected by, any doubts that Counsel initially harbored about Mouelle's credibility.
The Ninth Circuit's decision in Lowery is, in any event, inapposite because it turned on the defendant's constitutional right to due process. Here, Mouelle invokes his constitutional rights under the Sixth Amendment. He asks us to discount this difference as a mere historical anomaly because Lowery predates the prejudice framework announced in Strickland . We decline to speculate about how Lowery would have been litigated in a post- Strickland setting. The Lowery court refused to make any prejudice inquiry, stating that "[w]hether a just result nevertheless was reached would be a futile and irrelevant inquiry."
Mouelle contends that he was prejudiced by Counsel's disclosures because the district court judge was required to make evidentiary rulings throughout the trial. But a district court judge's adverse rulings, without more, are not enough for a criminal defendant to demonstrate that the judge was biased against him. Greer v. State ,
Nothing in the record suggests that the jury's guilty verdicts were affected by the errors that Mouelle alleges that Counsel committed during the ex parte conversation with the district court. Accordingly, Mouelle has not shown that the alleged errors "actually had an adverse effect" on the outcome of the case; his claim of ineffective assistance of counsel therefore fails. Strickland ,
III.
Mouelle's third claim challenges the district court's jury instructions for the charge for first-degree premeditated murder of an unborn child. He seeks reversal of his conviction because, he contends, the instructions "negated" the requirement that the jury find the element of premeditation proven beyond a reasonable doubt.
A person is guilty of murder of an unborn child in the first degree if he commits an act that "causes the death of an unborn child with premeditation and with intent to effect the death of the unborn child or of another."
Mouelle contends that the district court's instructions eliminated the State's requirement to prove the premeditation element beyond a reasonable doubt in two ways. First, the district court judge misread the written instructions when she told the jury that "[i]f the defendant acted with premeditation or with the intent to cause the death of a person other than the unborn child, the element of premeditation and intent to cause death is satisfied."
Second, the instructions incorrectly omitted a paragraph from the standard jury instructions. The standard jury instruction defining the elements of first-degree premeditated murder of an unborn child contains the following language, with the omitted paragraph italicized:
If you find that each of these elements has been proven beyond a reasonable doubt, the defendant is guilty of this charge.
If you have a reasonable doubt there was premeditation, but you find all the other elements have been proven, the defendant is guilty of murder in the second degree. The crime of murder in the second degree differs from murder in the first degree only in that the killing was done with intent to kill, but not with premeditation .
If you find that any element other than premeditation has not been proven beyond a reasonable doubt, the defendant is not guilty of this charge.
10 Minn. Dist. Judges Ass'n, Minnesota Practice-Jury Instruction Guides, Criminal , CRIMJIG 11.17 (6th ed. 2015) (emphasis added). The omission of this paragraph in the district court's written and oral jury instructions linked the sentences immediately preceding and following the omitted paragraph and implied that premeditation was not a required element of the crime.
*718Mouelle did not object to either alleged error in the district court. When a party fails to object to a jury instruction, the forfeiture doctrine generally precludes appellate relief. State v. Webster ,
Here, we need not consider the first two requirements of the plain-error doctrine because Mouelle failed to establish that the alleged errors affected his substantial rights. An omission of an element of the crime charged is not always prejudicial. State v. Watkins ,
The jury's guilty verdict on the first-degree murder charge for Lessman's death is determinative because it required a finding of premeditation. See
The State, furthermore, produced overwhelming evidence that Mouelle premeditated the murders of Lessman and the unborn child. The State's evidence included extensive mobile phone internet browser history related to missing persons and police investigation techniques. The State produced numerous internet searches, from the very day of the murder, about the exact methods used to kill Lessman. The State also showed that Mouelle bought the murder weapon on his way to Lessman's home. Numerous text messages were presented that showed Mouelle's failed efforts to convince Lessman to have an abortion or to put the baby up for adoption. All of this evidence proves that Mouelle planned to murder Lessman, and that his plans were motivated by his desire to avoid any obligations for the unborn child. Because Mouelle failed to establish that the alleged errors affected his substantial rights, his challenges to the jury instructions are unavailing.
IV.
Mouelle's final claim concerns his sentence for the conviction for first-degree premeditated murder of an unborn child.
*719He asserts that section 609.106 does not allow a sentence of life imprisonment without possibility of release for a conviction of first-degree murder of an unborn child. The State agrees.
Whether a sentence is authorized by a Minnesota statute is a question of law that we review de novo. State v. Williams ,
CONCLUSION
For the forgoing reasons, we affirm Mouelle's convictions, reverse the sentence imposed for the conviction of first-degree premeditated murder of an unborn child, and remand for further proceedings consistent with our opinion.
Affirmed in part, reversed in part, and remanded.
Before the ex parte conversation took place, the State had notice and gave Counsel permission to have the conversation. A portion of the ex parte conversation occurred off the record.
Counsel was referring to the United States Supreme Court decision in Nix v. Whiteside ,
At trial, the State's theory was that Mouelle had taken Lessman's phone and created this fictional exchange.
In Miranda v. Arizona ,
Mouelle argues, citing Butler v. United States ,
Because the facts and circumstances of this case do not create an appearance of impartiality, they do not satisfy the more stringent test for a due-process violation, which requires an "unacceptable risk of actual bias." Williams v. Pennsylvania , --- U.S. ----,
Although we do not analyze the objective reasonableness of Counsel's conduct here, we note the importance of an attorney's duties of loyalty and confidentiality to a client. See Minn. R. Prof. Conduct 1.6 (MRPC). To be sure, these duties exist in some tension with the attorney's duty of candor to the court, which prohibits an attorney from "knowingly" presenting false evidence or assisting in the commission of a crime such as perjury. Rule 3.3, MRPC. See also Rule 1.6(b)(9), MRPC (allowing disclosure of client communications when an attorney "reasonably believes the disclosure is necessary to comply with other law or a court order"). In balancing these competing duties, however, attorneys must act with cautious deliberation before disclosing privileged client communications. Disclosure of confidential client communications should only be made if needed to avoid "knowingly ... offer[ing] false evidence" or "assist[ing] in a course of conduct which defense counsel knows to be criminal or fraudulent." ABA Criminal Justice Standards for the Defense Function, §§ 4-1.4(b); 4-3.8(b).
Mouelle also cites the Eighth Circuit's opinion in United States v. Long ,
The written instructions correctly mirrored the language of the statute, stating that the charge required the jury to find that Mouelle acted "with premeditation and with the intent" to cause the death.
Reference
- Full Case Name
- STATE of Minnesota v. Vern Jason MOUELLE
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