§ 609.165

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State of Minnesota v. Tommy Salyers, III · 2015 2 citations

Appellant, Tommy Salyers, III, was convicted of being a felon in possession of a firearm, in violation of Minn. Stat. § 609.165, subd. lb(a) (2014); in possession of a firearm with no serial number, in violation of Minn. Stat. § 609.667(3) (2014); and in possession of a short-barreled shotgun, in violation of Minn. Stat. § 609.67, subd. 2 (2014). The conviction stemmed from law enforcement’s discovery of a locked gun safe in Salyers’ home containing three firearms. Salyers argued on appeal, among other things, that the State presented insufficient evidence that he constructively possessed the firearms in the locked safe. 1 The court of appeals affirmed. For the reasons discussed below, we affirm, although on different grounds.

It should be noted that to convict Sal-yers under MinnStat. § 609.165, subd. lb(a), Minn. Stat. § 609.667(3), or Minn. Stat. § 609.67, subd. 2, the State also had to prove that Salyers’ possession of the guns was knowing. While none of these statutes expressly state that knowledge of possession is a requirement, statutory silence is typically insufficient to dispense with the mens rea requirement. See State v. Ndikum, 815 N.W.2d 816, 822 (Minn. 2012). In fact, we have made it clear, at least with respect to the felon-in-possession statute, that knowledge of the prohibited item is required. See Flowers, 734 N.W.2d at 261-62 (holding that the trial court gave an improper instruction by stating that knowing possession, for purposes of being a prohibited person in possession of a firearm, may be inferred from the accused’s exclusive control over the firearm’s location). The question of whether the State provided sufficient evidence that Salyers knew the safe contained guns is not before us, however. Salyers did not address the knowledge requirement in his principal brief to the court of appeals or in his petition for review to our court. See State v. Finnegan, 784 N.W.2d 243, 248 n. 3 (Minn.2010) (explaining that failure to raise an issue in the petition for review “waives the issue on appeal”); see also In re GlaxoSmithKline PLC, 699 N.W.2d 749, 757 (Minn.2005).

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(4) ineligible person in possession of a firearm, in violation of Minn. Stat. § 609.165,

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State v. Anderson · 2002 2 citations

DECISION Under an analysis based on the totality of the circumstances, respondent's possession of a firearm was inherently dangerous to human life. Accordingly, we reverse the district court and hold that, where a loaded, stockless firearm is pointed at another and is discharged, resulting in death, felon in possession or possession of a stolen firearm may serve as predicate offenses to felony murder. Reversed. HUDSON, Judge (dissenting). I respectfully dissent. The majority's holding, that a felony-murder charge may be predicated on a "status" offense, is a dangerous and unwarranted extension of the felony-murder doctrine that ignores the doctrine's historical roots, and does so in the absence of explicit legislative directive. As the majority notes, the felony-murder rule developed to allow "one whose conduct brought about an unintended death in the commission or attempted commission of a felony [to be found] guilty of murder" by imputing malice when no intent to kill was evident. State v. Branson, 487 N.W.2d 880, 881 (Minn.1992) (quoting 2 Wayne LaFave et al., Substantive Criminal Law, § 7.5, at 206-07 (1986)). The rationale for the rule is that certain felonious conduct carries with it an especially increased risk that people may be killed as a result, and that when a killing occurs as a result of this conduct, fairness allows punishing the person responsible for murder as opposed to just manslaughter. State v. Nunn, 297 N.W.2d 752, 754 (Minn. 1980). Traditional predicate felonies under the rule include homicide, mayhem, rape, arson, robbery, burglary, larceny, prison breach, and rescue of a felon. JoAnne Adlerstein, Felony-Murder in the New Criminal Codes, 4 Am. J.Crim. L. 249 (1975-76). Because of the harshness of the felony-murder rule, most states have attempted to limit the felony-murder rule in various ways. See 2 LaFave, supra at 208. Despite these limitations, felony murder remains an anomaly in the law of homicide. Except for involuntary manslaughter, which carries a significantly lighter sanction, felony murder is the only form of homicide not requiring proof of a specific mental element. See Note, Felony-Murder: A Tort Law Reconceptualization, 99 Harv. L.Rev.1918, 1919 (1986) cited in Branson, 487 N.W.2d at 882. Because malice may be imputed from crimes qualitatively different from and far less severe *373 than murder, the most serious sanctions known to law may be imposed for what in fact may have been an accidental death. Id. For this reason, the rule has been severely criticized for its mechanical operation, penological purposes, and its intrinsic unfairness. Id. (citations omitted). In sum, the felony-murder doctrine expresses a highly artificial concept that deserves no extension beyond its required application. 2 LaFave, supra at 233. The current felony-murder statute technically applies to any felony except "criminal sexual conduct in the first or second degree with force or violence." Minn. Stat. § 609.19, subd. 2(1) (2002) (emphasis added). But the Minnesota Supreme Court has, like courts in many jurisdictions, judicially limited the application of the felony-murder rule by requiring that the predicate felony involve a special danger to human life. See, e.g., State v. Nunn, 297 N.W.2d 752, 754 (Minn.1980) (felony-murder rule applied to burglary in which assault was committed on resident of dwelling); State v. Forsman, 260 N.W.2d 160, 164 (Minn.1977) (felony-murder rule applied to distributing heroin by direct injection into the body of another). The supreme court has construed the requirement that predicate felonies involve a special danger to human life by examining whether, on the facts of the particular case, including the circumstances in which the felony was committed, there was a foreseeable danger to human life. Nunn, 297 N.W.2d at 753. The majority concludes that, based on the totality of the circumstances, respondent's possession of a firearm was inherently dangerous to human life. But the majority opinion is flawed in two critical respects. First, there is nothing inherently dangerous about the offenses of felon in possession and possession of a stolen firearm. These are "status" offenses that, as committed, do not create a special danger to human life. As the district court properly noted, each of these offenses is malum prohibitum—a crime because it is prohibited by statute—rather than malum in se—an inherently immoral act. See, e.g., Minn. Stat. § 609.165, subd. 19 (2002) (providing that felons convicted of "crime of violence" precluded from shipping, transporting, possessing or receiving firearm). In contrast, traditional predicate felonies such as rape, armed robbery, and arson, are malum in se—offenses with direct and immediate potential to be inherently dangerous to human life. The majority, however, treats the underlying status offense as tantamount to the actual conduct that resulted in the victim's death; that is, it equates unlawful possession of a firearm with the act of placing that firearm inches from another's head. Indeed, the result reached by the majority could not be accomplished unless these two distinct concepts are blurred. Relying on Nunn, the state and the majority effectively foreclose consideration of the elements of the predicate felony itself. But Nunn did not hold that the elements of the predicate felony are irrelevant. Rather, Nunn held that the court must consider both the elements of the predicate felony in the abstract and the circumstances under which the felony was committed to determine whether the felony-murder rule should be applied. Nunn, 297 N.W.2d at 754; see also State v. Cole, 542 N.W.2d 43, 53 (Minn.1996) (noting that "when determining if the underlying felony involves a special danger to life, we not only consider the elements of the underlying felony in the abstract, but also the facts of the particular case and the circumstances under which the felony was committed" (emphasis added)). Furthermore, examining only the facts and circumstances of the particular case, as the majority does, would eviscerate the Nunn *374 "special danger to human life" test, because in every felony in which a death occurs, the predicate offense would necessarily have been committed in a particularly dangerous manner. Rather, I would hold that, under the totality-of-the-circumstances test enunciated in Nunn, part of the consideration must necessarily be an examination of the elements of the predicate felony itself. As the district court correctly stated in this case, While felon in possession of a firearm creates a dangerous situation, there is a material distinction between the level of imminency and probability of the special danger to human life in that situation than in a situation involving the traditional felony predicates. The predicate felony in this case does not require an act of violence in carrying out the crime. Nor can it be persuasively argued that death would be the natural and probable consequence of the defendant's conduct in carrying out the predicate offense. The second critical flaw in the majority's opinion is that it fails to acknowledge that the discharge of the gun, the act causing Rogers' death, was not committed in furtherance of the underlying felony of unlawful possession. Felony-murder jurisprudence has long held that [t]he collateral crime and the homicide must be integrated and related in a causal way * * *. The death must be caused by the felonious act. The death need not be in furtherance of the felony, but the act that caused the death should be in furtherance of the felony. (Emphasis added.) Griffin v. Commonwealth of Virginia, 33 Va.App. 413, 533 S.E.2d 653, 659 (2000) (quotation omitted). Here, the majority focuses on the fact that the possession of the firearm had a direct connection with the homicide. But the application of the felony-murder doctrine has traditionally been premised on proving a causal relationship between the predicate offense and the victim's death. Thus, in the "typical" armed robbery felony-murder, a defendant is held responsible for any accidental shooting of a victim that occurs in the course of the defendant's attempt to commit the armed robbery. This is a critical limitation on the application of the felony-murder rule, yet the majority gives it short shrift. In support of its ruling, the majority notes that, although the common-law felonies (all malum in se) traditionally provided the basis for a felony-murder conviction, Minnesota courts have also used malum prohibitum felonies as predicate offenses. See, e.g., State v. Cole, 542 N.W.2d 43 (Minn.1996) (felony theft); State v. Back, 341 N.W.2d 273 (Minn.1983) (property offense). The majority notes that only after examining the particular circumstances of each case, did the court find that an inherent danger to human life existed. But the majority fails to recognize that the fatalities in Cole and Back resulted directly from the predicate felonies. In Cole, for example, there was inherent danger to human life when the defendant entered a department store, armed with a loaded gun, to return stolen goods. Cole, 542 N.W.2d at 46-47. The defendant eventually shot and killed a police officer to avoid arrest for the felony theft charge. Id. The court properly considered all of these circumstances. It is equally significant, however, that even though felony theft is not one of the traditional malum in se predicate felonies, the murder was committed in connection with the underlying act of theft. Application of the felony-murder rule was therefore proper. In contrast, here, respondent's use of the gun in accidentally killing the victim did not further his commission of the crime of felon in possession; it cannot *375 be ignored that he initially committed the predicate felony of possession before he ever came in contact with the victim. In addition, Cole purposely shot the police officer to evade arrest; here respondent accidentally shot the victim. Thus, one critical piece of the totality-of-the-circumstances test is absent here: the nexus between the homicide and the predicate felony itself. Causation has always been an integral part of the felony-murder doctrine, yet the extension articulated by the majority today eliminates the proximate cause requirement and allows the state virtually unlimited discretion to invoke the felony-murder rule. This is particularly troubling here, where the third-degree murder charge (depraved heart) more accurately reflects respondent's conduct. Unquestionably, pointing a loaded shotgun at someone's head from a few feet away is inherently dangerous. But these very facts support and explain the prosecutor's decision to charge respondent with murder in the third degree, in violation of Minn. Stat. § 609.195(a) (2000)—a decision the trial court affirmed when it found probable cause for the third-degree murder charge. Thus, the only apparent reason for the state to charge felony-murder was to ratchet up the permissible sentence. As former Justice Rosalie Wahl aptly noted in Branson, the issue presented here "is not whether the defendant can escape criminal liability, but rather, with what crimes the defendant may be properly charged under the circumstances of this case." Branson, 487 N.W.2d at 885. Like most murders, this was a heinous, senseless crime, and respondent should be held responsible for his conduct. Indeed, if the trial court order were affirmed, respondent would still face a third-degree murder charge, which I believe more precisely matches his unlawful conduct. What I object to is the unwarranted judicial intrusion upon what has heretofore been well-settled law, especially when our criminal code adequately encompasses the conduct at issue here. See Branson, 487 N.W.2d at 885-86. Therefore, I would affirm the trial court's pretrial order dismissing the unintentional murder in the second-degree (felony-murder) charge on the grounds that the "status" offenses of unlawful possession of a firearm and possession of a stolen firearm cannot serve as predicate offenses to felony-murder. NOTES [1] Most courts that have adopted the elements test have concluded that felon in possession of a firearm is not an inherently dangerous felony. See, e.g., People v. Satchell, 6 Cal.3d 28, 98 Cal.Rptr. 33, 489 P.2d 1361 (1971) (holding that under the elements test, possession of a firearm was passive and not a felony inherently dangerous to human life), overruled on other grounds by People v. Flood, 18 Cal.4th 470, 76 Cal.Rptr.2d 180, 957 P.2d 869 (1998); State v. Underwood, 228 Kan. 294, 615 P.2d 153 (1980) (stating that unlawful possession of a firearm, when viewed in the abstract, is not a felony inherently dangerous to human life and would not sustain conviction for murder in the first degree under felony murder rule). [2] Metts v. State, 270 Ga. 481, 511 S.E.2d 508 (1999) held that, under the totality of the circumstances, felon in possession was an inherently dangerous offense. Id. The defendant in that case pointed a loaded, cocked gun in the direction of a window, on the other side of which he knew there was a human being. Id. at 510. After the gun discharged and killed the victim on the other side of the window, the defendant admitted that he had shot the victim but asserted that the gun fired accidentally. Id. In light of these circumstances, the court held that the defendant's possession of the firearm was "dangerous and life-threatening, and had `an undeniable connection to the homicide * * *.'" Id. (quotations omitted). Cf. Ford v. State, 262 Ga. 602, 423 S.E.2d 255 (1992). In Ford, the defendant discharged a pistol while trying to unload it and killed a victim in the apartment below. Id. at 602, 423 S.E.2d 255. The court held that the circumstances supported the conclusion that the defendant did not intend an assault, or any other criminal conduct, and thus his actions were not inherently dangerous to human life. Id. at 603, 423 S.E.2d 255.

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