State v. Mouelle

922 N.W.2d 706

STATE of Minnesota, Respondent,

v.Vern Jason MOUELLE, Appellant.

A18-0083

Supreme Court of Minnesota.

Filed: February 6, 2019

Keith Ellison, Attorney General, Saint Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Jessica A. Bierwerth, Anna Light, Assistant Dakota County Attorneys, Hastings, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant State Public Defender, Saint Paul, Minnesota, for appellant.

OPINION

CHUTICH, Justice.

Appellant 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"; "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 Minn. Stat. §§ 609.185(a)(1), 609.2661(1) (2018) (respectively). Pleading not guilty, Mouelle was tried by a jury in December 2017.

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.¹ During the conversation, Counsel informed the court that if Mouelle chose to testify, Counsel was "going to have to ... do as well as [he could] under Whiteside ."² Counsel also told the court that he and Mouelle could not agree on whether Counsel should give an opening statement before the State presented its evidence. In describing the disagreement, Counsel quoted parts of a conversation that he had with Mouelle. Based on the ongoing disagreement, Counsel explained that he would request a short recess after the prosecutor’s opening statement. The judge said, "I'm not going to comment any further about your conversations with your client as they are privileged. We will take a recess after the prosecution’s opening statement ... and you can let me know if you're ready."

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.

Despite 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.³

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. Minn. Stat. § 632.14 (2018) ; Minn. R. Crim. P. 29.02, subd. 1(a).

ANALYSIS

I.

Mouelle first contends that a structural error occurred when Counsel’s ex parte reference to Nix v. Whiteside , 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986), suggested to the district court that Mouelle might commit perjury. He essentially maintains that, when the district court judge learned of his potential perjury, the judge was required, under the Code of Judicial Conduct, to recuse herself. When the judge continued to preside over the trial, Mouelle contends that a structural error occurred, requiring automatic reversal. We conclude that, because Mouelle cannot establish that the circumstances of this trial raised even the appearance of judicial partiality against...