Filed in District Court State of Minnesota 91512018 1:22 PM STATE OF MINNESOTA DISTRICT COURT COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT State of Minnesota, RESPONSE TO MOTIONS TO DISMISS FOR LACK OF Plaintiff, PROBABLE CAUSE vs. MNCIS No: MOHAMED MOHAMED NOOR, Defendant. TO: THE HONORABLE QUAINTANCE, HENNEPIN COUNTY DISTRICT COUNSEL FOR AND DEFENDANT. INTRODUCTION MOHAMED MOHAMED NOOR, the defendant, is charged With one count of Third Degree Murder, pursuant to Minn. Stat. 609.195(a) and one count of Second Degree Manslaughter, pursuant to Minn. Stat. 609.205, subd. 1, for causing the death of Justine Damond on July 15, 2017. The defendant has moved the court to dismiss both counts for lack of probable cause. The defendant?s actions showed a reckless disregard for human life and the evidence of his recklessness more than meets the standard for probable cause. The court should deny the defendant?s motions to dismiss for lack of probable cause. STATEMENT OF FACTS The Shooting Death of Justine Ruszcz_v_k On July 15, 2017, at 11:27:01 Justine Damond called 911 from inside her house at 5024 Washburn Avenue South in Minneapolis. Ms. home is in Minneapolis?s Fifth Police Precinct and its southwest Minneapolis neighborhood is the lowest- Filed in District Court State of Minnesota 9/5l2018 1:22 PM crime area in that precinct. Ms. was home alone with her dog on that warm summer night. Her ?ance, Don Damond, was out of town for a work commitment. Ms. told the 911 operator she could hear a woman in the alley behind her house who was either having sex or being raped, it had been going on for a while, and the woman sounded distressed. Forty-one seconds later, at 11:27:42 pm, Minneapolis Emergency Communications aired a call to Minneapolis Police squad 530, operated by Of?cers Matthew Harrity and Mohamed Noor, the defendant. Of?cer Harrity and the defendant received the call by radio, which said ?Squad 530 to 5024 Washburn Avenue South, female screaming behind building.? Five seconds later, at 11:27 :47 the squad was dispatched to 5024 Washburn Avenue South for which stands for unknown trouble. While the first call came by radio, the dispatch came through the squad car computervia text. Responding to the call, Of?cer Harrity drove the marked Minneapolis Police Department squad from the area of 36'Lh Street and Nicollet Avenue to the alley entrance at 50th and Xerxes, a distance of about 3 .6 miles. The defendant was in the passenger seat. Eight minutes after her ?rst call, at 11:35 :22 pm, Ms. called 911 a second time, saying that no one had arrived yet and she was concerned they got the address wrong. The 911 operator veri?ed the address and told her the police were on the way. Less than one minute later, at 11:36:04 Of?cer Harrity and the defendant were noti?ed by computer that the 911 caller called back for estimated time of arrival. Two minutes and nine seconds after her second call to 911, at 11:37:29 pm, Ms. called Mr. Damond, whom she had told about the noises she heard and her 911 calls. Their conversation lasted 1 minute and 41 seconds, ending at 11:39:10 pm. Just before ending the call, Ms. told Mr. Damond, ?Okay, the police are here.? While Ms. and Filed in District Court State of Minnesota 91512018 1:22 PM ?Mr. Damond were on the phone, the defendant?s squad had entered the alley between Washburn and Xerxes on 50th Street, heading south toward 5024 Washburn at 11:37:40 pm. This information was preserved by the squad? 3 GPS system. Of?cer Harrity turned off the headlights and dimmed the computer screen as they drove down the alley. He used his spotlight to look for people on his side of the car, which was the east side of the alley directly behind 5024 Washburn. Of?cer Harrity?s window was all the way down. According to Of?cer Harrity, he was not wearing his seatbelt and had removed the safety hood of his holster before turning into the alley.1 He heard what he believed to be the sound of a dog barking 0r whining in a house on his side of the alley just before reaching the rear of 5024 Washburn. He never got out of the car to investigate. The defendant did not get out of the car in the alley, either. The squad car slowed to 2 in the alley but never stopped behind 5024 Washburn. The of?cers did not encounter any people while driving through the alley. The squad car neared the south end of the alley at 513t Street at 11:39:34 pm, 1 minute and 56 seconds after entering the alley on the north end, and 24 seconds after Ms. and MI. Damond ended their last phone call. At that time, the defendant entered ?Code 4? into the squad computer. ?Code 4? means that of?cers are safe and do not need assistance. The squad car picked up speed to 8 and moved to the mouth of the alley where Of?cer Harrity parked the squad car and turned on its lights. At that point, Of?cer Harrity noticed a male on a bicycle to his right heading east on 51St Street from Xerxes. Of?cer Harrity was not surprised to see the bicyclist, as it is common for residents of that neighborhood to walk dogs or ride bikes at that 1 Of?cer Harrity had a ?Level 3 holster.? Drawing the ?rearm takes three steps: (1) removing the safety hood, (2) pressing a release trigger on the side of the holster that unlatches the ?rearm, and (3) pulling the ?rearm out of the holster. 8-5359 Filed in District Court State of Minnesota 952018 1:22 PM hour. Of?cer Harrity told the defendant they were going to back up of?cers on a different call in the Fifth Precinct as soon as the bicyclist passed them. The of?cers were still parked at the end of the alley at 51St Street at 11:40:15 p.rn., which is the last known time veri?able by other sources before the defendant fatally shot Ms. The next veri?able time is fourteen seconds later, at 11:40:29 pm, when Of?cer Harrity activated his body worn camera. The bicyclist, who had stopped and gotten off his bike, recorded events for 29 seconds before leaving the area. The bicyclist?s video of events clearly begins after the shot was ?red and after Of?cer Harrity and the defendant exited their squad. Other Minneapolis Police of?cers began to arrive at 11:44:47 pm. The Minneapolis Fire Department arrived at 11:47:09 pm. and paramedics from Hennepin County Medical Center arrived at 11:49:16 pm. The squad car, a Ford Explorer SUV, had no damage consistent with a bullet hitting the inside or outside of the car, or any window in any location. Subsequent ?rearms testing determined that the bullet that killed Ms. was ?red from the defendant? 3 gun. Gunpowder residue from the defendant? 3 shot blanketed the interior of the car and was later found on the driver?s side ceiling, the interior of the driver?s door, the steering wheel, the driver?s headrest, and the dashboard on the driver?s side. Gunpowder residue was on the left and right sides of both shirts Of?cer Harrity was wearing, the front of his vest, and both legs of his pants. As for the defendant, his right and left pant legs and the right side of his shirt also contained gunpowder residue. When the of?cers? shift supervisor arrived on scene minutes after the defendant shot Ms. Of?cer Harrity gave his ?rst statement about what occurred before and during the shooting. His statement was preserved on his body worn camera video: Filed in District Court State of Minnesota 1:22 PM Uh, we had that, um, the call over here. Someone was screamin? in the back. We pulled up here. Uh, we were about ready to just clear and go to another call. She just came up outta nowhere. On the side of the thing and we both got spooked. Ihad my gun out. I didn?t ?re, and then Noor pulled out and ?red. The shift supervisor spoke with the defendant minutes after speaking to Of?cer Harrity. Part of this interaction was captured by body worn camera video, but there is no audio.2 Even without audio, the video clearly shows the defendant demonstrating to his sergeant how he lifted his arms and gun, pointed toward the driver?s window, and ?red. On two occasions since speaking with his shift supervisor on scene, Of?cer Harrity has offered longer and different explanations for what transpired in those fourteen seconds from his perspective and point of view. He has said that he and the defendant were at the end of the alley waiting for the bicyclist to pass when he (Harrity), with his gun still holstered, put the safety hood back on his holster. The defendant was on the computer. Of?cer Harrity put the car in park and his window was down. Of?cer Harrity stated that because they had ?nished checking behind the buildings in the alley and found nothing, he considered the call completed and he relaxed. Five to ten seconds after the defendant ?nished on the computer, Of?cer Harrity heard a voice, and then a thump on the squad car somewhere behind him. He then caught a glimpse of a person?s head and shoulders outside his window. He was not able to articulate what the noise was, how loud it was, what the person?s voice sounded like, or what the person said. He characterized the voice as a muf?ed voice or a whisper. Of?cer Harrity could not see whether the person was a male, female, adult, or child. He could not see the person?s hands from the driver?s seat and estimated that the person was two feet away from him. He saw no weapons. 2 The supervisor?s body worn camera had been turned off and was in standby mode (as opposed to being powered off) when she approached the defendant, who was sitting in another of?cer?s squad car after the shooting. She turned it back on after speaking with the defendant. When body worn cameras are turned back on, they recapture the previous thirty seconds on video, but do not recapture the audio for that thirty seconds. 5 27-CR-18-5859 Filed in District Court State of Minnesota 9132018 1:22 PM Of?cer Harrity said he was startled and said, ?Oh sh*t?? or ?Oh Jesus.? Never explaining why, Of?cer Harrity said he perceived that his life was in immediate danger from this unidenti?ed ?gure of a person, reached for his gun, un~holstered it, and held it to his ribcage while pointing it downward. From the driver?s seat, he had a better vantage point to determine a threat on his side of the car than the defendant. Of?cer Harrity has stated that he then heard something that sounded like a light bulb dropping on the ?oor and saw a ?ash. After ?rst checking to see if he had been shot, he looked to his right and saw the defendant with his right arm extended toward him. Of?cer Harrity has said he did not see the defendant?s gun. Of?cer Harrity stated that he looked out his window and, for the ?rst time, saw a woman. The woman had a gunshot wound on the left side of her abdomen. She put her hands on the wound and said, ?I?m dying? or ?I?m dead.? Of?cer Harrity said that once he saw the woman?s hands covering her fatal wound, he believed she was no longer an imminent threat to his safety and he got out of the squad car. The woman was far enough away from the car that Of?cer Harrity was able to open his door and get out unobstructed. The defendant also got out of the car, still carrying his handgun. Of?cer Harrity told to him re?holster his gun and turn on his body worn camera. There is no evidence that the defendant would have been able to, or did, see or hear anything on Of?cer Harrity?s side of the car that Of?cer Harrity could, or did, not. Speci?cally, there is no evidence that the defendant also saw a ?gure or a person, let alone Ms. in particular. There is no evidence that the defendant warned anyone, including Of?cer Harrity or the bicyclist nearby, that he had his gun out and was prepared to ?re in the coming seconds. There is no evidence that he told anyone to stand back, show their hands, or identify themselves. He made no attempt to identify a threatening situation, let alone deescalate one. If the defendant 273918-5859 Filed in District Court State of Minnesota 91512018 1:22 PM had made any inquiry into the circumstances, he would have realized Ms. was an unarmed woman who had called 911 twice to report a possible crime, and who wanted to speak to him and Of?cer Harrity before they drove away, having conducted only the most cursory, less-than?two?minute investigation into her calls. What the defendant chose to do instead was immediately fire his handgun from his seat. The defendant?s bullet traveled across the space in the squad car just in front of Officer Harrity?s face and passed through the open car window, covering the inside of the car and its occupants with gunpowder and killing Ms. as the bicyclist passed in front of the squad car. ]_E?_r_ior Events on ulv 15, Prior to reporting for his mid-watch shift (4:15 pm. to 2:15 am.) on Saturday, July 15, 2017 the defendant worked an off-duty job for seven hours at Wells Fargo, starting at 7 :46 am. and ending at 2:44 pm. The defendant and Officer Harrity? night on patrol was relatively uneventful until the shooting. Their first call was to an emotionally disturbed person on West 50?n Street at 5:48 pm. This call was unrelated to the shooting. At 6:32 pm, the of?cers responded to a call of an emotionally disturbed juvenile on Lyndale Avenue South that was also unrelated to the shooting. After that, the of?cers responded to a domestic abuse call, a suspicious vehicle call, an assault call, and a disturbance at the Lake Harriet Bandshell. One and a half hours before the shooting, Of?cer Harrity and the defendant responded to a call in the same area as the shooting. That call originated at 9:15 p.rn., when a woman called 911 while walking her dog to report that there was an elderly woman with ?her bags packed? who had nowhere to go and might be suffering from dementia. According to the 911 caller, the elderly woman was on 47th and Vincent Avenue South and walking toward Xerxes Avenue. Three minutes later, at 9:18 pm, the defendant and Officer Harrity were dispatched to 48th and Filed in District Court State of Minnesota 9512018 1:22 PM Xerxes on a ?check welfare call? related to that 911 call. At 9:24 pm, the woman called 911 again, concerned that the police had not yet arrived. She reported that the elderly woman was heading south and was now on 48th and Vincent. At 9:29 pm, the woman called 911 a third time, asking where the police were and reporting that the elderly woman was now on 48?n and Xerxes. The activity log from squad 530 shows that the defendant and Of?cer Harrity arrived in the area of 48m and Xerxes thirty minutes later, at 9:59 pm. One minute later, the of?cers asked their dispatcher if the woman was still in the area and the dispatcher called the 911 caller back. One minute after that, the 911 caller told the dispatcher the elderly woman with dementia was now on 50th and Xerxes, the street on the opposite side of the alley from 5024 Washburn, and 337 feet from where the of?cers would later drive to respond to Ms. calls. At 10:03 pm, three minutes and forty seconds after arriving in the area, the defendant and Of?cer Harrity cleared the call as ?unable to locate? and entered Code 4 into their computer. At 10:22 pm, the defendant and Of?cer Harrity were at 31St and 1St Avenues South, signed out for their dinner break. They came back on duty at 11:12 pm. Asked later if he drew any connection between the call that brought him to 50th and Xerxes for a woman wandering and the call that brought him to the alley of the same block one hour and 34 minutes later for a call of a woman screaming in the alley, Of?cer Harrity said he did not. Maw On May 18, 2017, at 6:03 p.rn., a man was driving alone in his car on 24th Avenue South near Nicollet and Blaisdell Avenues when he was pulled over by the defendant and another MPD of?cer. The defendant was driving the squad car. Squad car video from this traf?c stop shows that the driver may have committed a minor traf?c violation. It also shows that the defendant got TIER-1845359 Filed in District Court State of Minnesota 9/512018 1:22 PM out of his squad car with his gun pulled out and pointed downward. When the defendant approached the driver?s side of the stopped car, the ?rst thing he did was point his gun at the driver?s head. The other of?cer approached on the passenger side, also with his gun out, but not pointed directly at the driver. According to the computer?generated Incident Detail Report for the incident, the of?cers observed the driver raise his middle ?nger to a bicyclist and then pass another car on the right without signaling. Neither of?cer wrote a report or otherwise documented their display of force or any justi?cation for it. The of?cers issued a petty misdemeanor ticket to the driver for failing to signal. The defendant failed to appear for court at a scheduled hearing on the ticket and the case against the driver was dismissed. April 8, 2016 On April 8, 2016, the defendant, then a recruit, was on day 83 of his ?eld training program. He was working with an experienced and trained MFD of?cer, known as a ?eld training of?cer, or He was in the ?nal ten days of training, during which the PTO works in plainclothes and the recruit of?cer is expected to perform all duties on the shift. At the end of every shift, the PTO completes a Recruit Of?cer Performance Evaluation, or form. On the eighth day of the ten-day period meaning the defendant had two more training shifts before assuming the full responsibilities of an MPD of?cer the defendant?s FTO wrote that the defendant did not want to take calls at times. While police calls were pending, the defendant drove around in circles, ignoring calls when he could have self?assigned to them. The FTO noted that the pending calls were simple ones an of?cer working alone could easily handle, including a road hazard and a suspicious vehicle where a caller was unsure whether the car was occupied. Filed in District Court State of Minnesota 915/2018 1:22 PM March 31, 2016 On day 79 of the PTO training period (still within the ?nal ten days), the PTO noted that the defendant, like all new officers, was struggling with the precinct geography (in this case, the Third Precinct), but had particular trouble on this shift with Code 3 driving. ?Code 3 driving is with lights and sirens. The FTC later said that the defendant had ?tunnel vision? as he drove, focusing on a smaller and smaller area in front of him. The FTO said that the training is intended to teach an of?cer that ?you?re always scanning and looking and checking things.? On this date, the defendant was suffering from tunnel vision while driving to such a degree that the PTO had to yell at him to get him to snap out of it. March 5, 2016 The defendant was on day 64 of his ?eld training program, working with an FTO. The defendant and his FTO went on a call of a person knocking on doors in the evening and pretending to be a Century Link employee. The officers discussed that such behavior at that time of day suggested that the person was pretending to be a Century Link employee while knocking on doors to see if anyone was home in order to ?nd an empty home to burglarize. The FTO noted that the defendant, when speaking with the caller, told the caller he would look around the area for the suspicious person. Instead of doing that, the defendant got back into his car and left the area. The FTO later stated that it mattered to her that the defendant said one thing and did another because police should ?do our due diligence on this job, so it?s important that you at least try to look around. You never know if that person?s in the area.? She also said 911 callers tend to believe the police when the police say they are going to look for somebody. 10 Filed in District Court State of Minnesota 1 :22 PM February 20, 2016 The defendant was on day 58 of his field training program working with an PTO. On this date the PTO noted on the ROPE form that ?the higher the level of stress, the more Noor focuses on one thing and misses other things, like radio transmissions or acknowledging dispatch,? and ?Noor missed a few dispatch transmissions during a more stressful call on Lake Street.? The FTC later stated that the issue in this situation was the defendant?s focus on getting to the call and not on receiving the information he needed about the call before arriving. The FTO also wrote that during this call, which was a suspicious vehicle/DWI call, the defendant was ?narrowly focused on the intersection of Lake Street and Elliot Avenue where the call originated but was no longer in the area.? Because of the defendant?s limited focus, he was not taking in or appreciating updated information he was receiving from dispatch. February 17: 2015 The defendant participated in a pre?hiring screening and background check, as is required by all candidates for positions with MPD. A evaluation consisting of an interview and an MZMPI test3 is also required. The defendant took the and his profile was compared to the relevant population of other police officer candidates across the United Statesd? While the test results showed no diagnoses of mental illness, they revealed the following (in relevant part): In the interpersonal realm of functioning, he reported disliking people and being around them. He is likely to be asocial and socially introverted. However, he reported little or no social anxiety. [T]he test results indicate a level of disaffiliativeness that may be incompatible with public safety requirements for good interpersonal functioning. His self?reported disinterest in interacting with other 3 The MMPI is the lv?nnesota Multiphasic Personality Inventory, a standardized test that assesses personality traits and 4 As part of the investigation in this case, the BCA acquired the defendant?s MIMPI testing raw data by search warrant. Using the data, an independent re-scored the test and came to the same conclusion as the examiner in 2015. The independent gist has not met or interviewed the defendant. 11 Filed in District Court State of Minnesota 1:22 PM people is very uncommon among other police of?cer candidates. Only 1.7% of members of a comparison group of police of?cer candidates describe a level of disaf?liativeness equal to or greater than his reported on the test. In addition, compared to other police of?cer candidates, he is more likely to become irnpatient with others over minor infractions; and to have a history of problems getting along with others, to be demanding, and to have a limited social support network. He is also more likely than most police of?cer candidates or trainees to exhibit dif?culties confronting subjects in circumstances in which an of?cer would normally approach or intervene. In addition, he is more likely to exhibit dif?culties in demonstrating a command presence and controlling situations requiring order or resolution. The test results are provided with a caveat that they are to be used in conjunction with a clinical evaluation of the test-taker. A conducted such an examination and concluded that because there was no evidence of major mental illness, chemical dependence, or personality disorder, the defendant was ?t to work as a cadet police of?cer for the Minneapolis Police Department.? Given the abnormalities in the test?s ?ndings, a civilian human resources employee of the MPD asked the to provide clari?cation on the opinion ?fteen days later. The reported that the test results did not ?correlate with the clinical history, examination, and collateral infonnation,? so he ?did not give the testing much weight? in concluding that the defendant was ?t for duty as an MPD of?cer. 12 27-CR-1 13-6859 Filed in District Court State of Minnesota 915/2018 1:22 PM ARGUMENT Ibere is Probable Cause to Believe the Defendant Committed Murder in the Third Degree and Manslaughter in the Second Degree 1. DEFINITION OF PROBABLE CAUSE AND LEGAL STANDARD FOR A PROBABLE CAUSE DETERMINATION. There is probable cause to believe the defendant committed third-degree murder when he shot and killed an unarmed Just'ne on July 15, 2017. Probable cause exists when the facts presented ?lead a person of ordinary care and prudence to hold an honest and strong suspicion that the person under consideration is guilty of a crime.? State v. Oritz, 626 445, 449 (Minn. Ct. App. 2001) (citing State v. Carlson, 267 170, 173 (Minn. 1978)). In evaluating a motion to dismiss for probable cause, a district court must ?view the evidence and all resulting inferences in favor of the state.? State v. Peck, 773 768, 782 n.1 (Minn. 2009). motion to dismiss for lack Of probable cause should be denied where ?the facts appearing in the record, including reliable hearsay, would preclude the granting of a motion for a directed verdict of acquittal if proved at trial.m State v. Lopez, 778 700, 703?04 (Minn. 2010) (quoting State v. Florence, 239 892, 903 (Minn. 1976)). A directed verdict of acquittal should be denied ?where the evidence, viewed in the light most favorable to the State, is sufficient to sustain a conviction.? State v. Simian, 745 830, 841 (Minn. 2008). In making this determination, the district court should consider the entire record: If . . . the complaint, the police reports, the statements of witnesses and the representations of the prosecutor, who is an Of?cer of the court, convince the court that the prosecutor possesses substantial evidence that will be admissible at trial and that would justify denial of a motion for a directed verdict Of acquittal, then the court should deny the motion to dismiss without requiring the prosecutor to call any witnesses. l3 Filed in District Court State of Minnesota 9.612018 1:22 PM State v. Dunagan, 355, 356 (Minn. 1994) (quoting State v. Rad, 359 573, 579 (Minn. 1984)). At this stage of the case, therefore, the court must view the evidence and all inferences to be drawn from that evidence in the light mo st favorable to the state. 11. THIRD DEGREE MURDER. The defendant is charged with violating Minn. Stat. which requires proof of four elements (renumbered here): 1. The death of Ms. Justine 2. That the defendant caused her death; 3. That the offense took place in Hennepin County; and 4. That the defendant?s intentional act, which caused the death, was eminently dangerous to human beings and was performed without regard for human life. Such an act may not be specifically intended to cause death, and may not be specifically directed at the particular person whose death occurred, but it is committed in a reckless or wanton manner with the knowledge that someone may be killed and with a heedless disregard of that happening. See 10 Minnesota Practice, CRIMI 1G 11.38 (6th ed). Probable cause is easily demonstrated for the first three elements given the evidence that the defendant fired the shot that killed Ms. in her Minneapolis alley on July 15, 2017. Probable cause also exists for the fourth element of this offense, the defendant? 3 intent and state of mind at the time of the homicide. The third degree murder statue itself describes the required state of mind in different and antiquated language: ?Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree . . . Minn. Stat. 609.195(a) (2017). lmportantly, the jury instruction speci?cally l4 Filed in District Court State of Minnesota 9/5/2018 1:22 PM excludes the words ?depraved mind? in favor of its current language. As stated in the comment to The words ?depraved mind? have not been included in the elements. These words are not susceptible of de?nition, except in terms of an ?eminently dangerous? act and the lack of regard for human life. Since those terms are used, the further use of the words ?depraved mind? seems unnecessary and possibly prejudicial. The phrase ?committed in a reckless or wanton manner? is drawn from State v. Lowe, 66 Minn. 296, 68 NW. 1094 (1896). See also, 2 Wayne R. LaFave, Substantive Criminal Law, 593-94 (3d ed. 2017): For murder the degree of risk of death or serious bodily injury must be more than mere unreasonable risk, more than even a high degree of risk [footnote omitted]. Perhaps the required danger may be designated a ?very high degree? of risk to distinguish it from those lesser degrees of risk which will suf?ce for other crimes [footnote omitted]. Such a designation of conduct at all events is more accurately descriptive than that ?owery expression found in the old cases . and occasionally incorporated into some modern statutes [footnote omitted] conduct ?evincing a depraved heart, devoid of social duty, and fatally bent on mischief.? An eminently dangerous act is one which is dangerous to anyone who happens to come along or be in the way at the time of the act. State v. Reilly, 269 343, 349 (Minn. 1978) (quoting Lowe, 68 NW. at 1095). In Minnesota, recklessness and disregard for human life need not be proved directly, but may be inferred from the perpetration of an act demonstrating exactly those things, as well as the circumstances surrounding the act. State v. Waltz, 155 Minn. 143, 146, 193 N.W. 42, 43 (1923). The third degree murder statute covers conduct where the reckless acts were committed ?without special regard to their effect on any particular person or persons, but were committed with a reckless disregard of whether they injured one person or another.? Lowe, 68N.W. at 1095. 15 Filed in District Court State of Minnesota 91/512018 1:22 PM 111. THERE IS PROBABLE CAUSE To BELIEVE TEE DEFENDANT COMMITTED THIRD DEGREE MURDER BY KNOWINGLY CREATING AN UNREASONABLE RISK To HUMAN LIFE WITH FULL AWARENESS OF THE RISK. The ?depraved mind? standard for third degree murder is ?equivalent to a reckless standard.? State v. Barnes, 713 325, 332 (Minn. 2006) (citing State v. Carlson, 328 690, 694 (Minn. 1982)). As stated earlier, the State can prove a defendant?s recklessness by circumstantial evidence, including the nature of the act itself. Weltz, 193 NW. at 43. This inquiry should focus on: A) whether the defendant?s actions created the requisite high degree of risk, and B) whether the defendant was aware of the risk created by his conduct. See LaFave, supra, Also, a defendant?s prior acts can be used to prove the defendant?s state of mind in a third degree murder case. State v. Padden, Cl?99-506, 2000 WL 54240, at *3 (Minn. Ct. App. 1 an. 25, 2000) (unpublished, copy attached pursuant to Minn. Stat. 480A.03, subd. 3). A. The circumstances of Ms. death Show the defendant?s actions were eminently dangerous and created an unreasonable risk to human life. The defendant recklessly created an extremely dangerous situation and acted without regard for human life when he fired his 9mm semi-automatic handgun from the passenger seat of his squad car without making any inquiry into who or what he was shooting. Shooting near a person while not directly aiming at that person constitutes the ?very high degree of unjustifiable homicidal danger? required for third degree murder. aye, supra, at 597. Such unjustifiable danger is also demonstrated by putting more than one person at risk of death. See, e. g, Stiles v. State, 664 315 (Minn. 2003) (third degree murder instruction not appropriate in the absence of evidence that the defendant endangered anyone other than the victim). Not only must the risk of death be ?very high,? it must also be unjustifiable for the 16 Filed in Court State of Minnesota 9I5I2018 1:22 PM defendant to take the risk under the circumstances. LaFave, supra, at 596. This requires an inquiry into the motives and social utility of the defendant?s conduct. Id. For example: If [one] speeds through crowded streets, thereby endangering other motorists and pedestrians, in order to rush a passenger to the hospital for an emergency operation, he may not be guilty of murder if he unintentionally kills, though the same conduct solely for the purposes of [thrill seeking] may be enough for murder. Id. Addressing first the very high risk the defendant created, not only was Ms. obviously killed from the defendant?s bullet, but Of?cer Harrity was one foot away from the defendant when he fired. The bullet, therefore, passed mere inches in front of Of?cer Harrity on its way out the window. The fact that Officer Harrity, his headrest, and the steering-?wheel in front of him were covered in gunshot residue shows how dangerous and what a close call this shooting was. Of?cer Harrity was clearly in danger, and was therefore a person ?in the way at the time of the act? as described in State v. Lowe, 68 NW. 1094, 1095 (Minn. 1896). Similarly, the juvenile bicyclist on the residential street just a few feet away, who was traveling in the same direction that the defendant tired, was also in danger because he was a ?person who happened to 3 come along . . . at the time" as also described in Lowe. Id. The defendant and Of?cer Harrity were responding to a call of a woman in distress in the alley. The defendant should have reasonably expected that a crime victim, a perpetrator, and a 911 caller could be in the nearby streets or the alley or could have approached the car. Any of them could have been killed by the defendant?s bullet. Also, according to Officer Harrity, it would not be uncommon for joggers or dog walkers to be out in the neighborhood at that time of night. Any of those people would have been put at risk by the defendant? 3 conduct. l7 Filed in District Court State of Minnesota 1:22 PM The defendant?s actions were also unjusti?able and had no social utility. There is no evidence that the defendant feared for his life, was ever in danger, or was protecting others from an actual threat. Ms. was unarmed and uttered no threatening words. The defendant and Of?cer Harrity were in a marked squad car in the lowest?crime area of their precinct. Despite knowing of two 911 calls reporting that a woman was in distress in the alley behind them, the defendant and Of?cer Harrity apparently felt quite sure that there was no emergency and no criminal activity taking place around them because the defendant entered Code 4 into the computer and they casually waited for the bicyclist to pass before moving on to another call. They sat in their squad with their headlights on, out in the open and under numerous street lights; this was not an inherently frightening or dangerous situation. The defendant had no reason to fear for his life and instead had every reason to think Ms. was either the person who had called 911 for police service or a victim. For a police of?cer to shoot the ?rst person who walks up to his or her squad when reSponding to such a call violates any sense of social duty or utility. Police are trained to assess the situation they are in and tell a person to stop, show their hands, or identify themselves actions the defendant simply skipped before using deadly force. The defendant argues that he reacted to a ?perceived threat of danger? based on the statements of Officer Harrity, who later claimed that the events just before the defendant fired were the most frightening of his career. Keeping in mind that for a probable cause analysis, inferences should be drawn in the State?s favor and disputes of fact are for the jury to decide, Officer Harrity?s claim of such extreme fear is incredible, and nowhere near objectively reasonable. The defendant also attempts to attribute Of?cer Harrity?s state of mind to the defendant when there is no evidence of what the defendant actually perceived or experienced, 18 Filed in District Court State of Minnesota 1:22 PM and no evidence that he encountered any threat at all. The facts prove that the defendant and Of?cer Harrity could not have experienced the events in the same way. Of?cer Harrity never saw anything more than a silhouette through his window unidenti?able as man, woman, or child. He did not identify Ms. nor any threat she could have posed as she stood on his side of the squad car. The defendant would not have been able to see what Of?cer Harrity saw and certainly could not have seen more than Of?cer Harrity, given that he was further away and Of?cer Harrity was seated between him and Ms. The defendant committed an unjusti?ed act with no social utility and created an unreasonable risk to human life when he ?red across his partner and through the squad window. B. The circumstances Show that the defendant was aware of the risk he created. When the defendant shot and killed Ms. he knew the risk he created. In evaluating whether the defendant was aware of the risk he created, the court should not focus on the amount of risk in the abstract. LaFave, supra, at 596. Rather, the defendant?s realization of the risk should be evaluated based on the surrounding circumstances known to him. Id. For example: The risk is exactly the same when one ?res his rifle into the window of what appears to be an abandoned cabin in a deserted mining town as when one shoots the same bullet into the window of a well?kept city home, when in fact in each case one person occupies the room into which the shot is ?red. In the deserted cabin situation it may not be, while in the occupied home situation it may be, murder when the occupant is killed. Id. Here, the defendant took absolutely no time to determine whether Ms. was the original 911 caller, the woman in distress in the alley, a perpetrator, or a random citizen wanting to talk to the police. The defendant was in full uniform in a fully marked squad car, 19 27-CR-18-5859 Filed in District Court State of Minnesota 9I5l2018 1:22 PM conspicuously conveying to everyone that he was an armed police of?cer. lmportantly, the call they were responding to made no mention of a weapon of any kind. Rather than investigate an hing he may have heard or seen; rather than give a command to anyone to stop, stand back, or show their hands; rather than give a warning that he was about to ?re, he just fired. The defendant, a police officer, knew his shot could kill. In that way, the defendant is like LaFave?s hypothetical defendant who shoots at a house without first assessing the circumstances. See id. Just like the house in the city is more likely occupied (and therefore more risky to shoot at), the likelihood that Ms. or anyone approaching the defendant?s squad was an unarmed and concerned citizen or even a crime victim was far greater than any other possibility. The defendant?s choice to forego any warning or safety actions demonstrates that he acted with indifference, in disregard of human life, and with full knowledge that he was taking the risk of killing someone without having any idea who it was. C. The defendant?s prior acts of recklessness and indifference as a police of?cer are relevant and prove the defendant?s state of mind at the time of the offense. The defendant?s prior acts of recklessness and indifference during his time as a police of?cer are relevant and prove the defendant?s state of mind at the time of the offense. Evidence is relevant if it has ?any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.? Minn. R. Evid. 401 (2017). Additionally, evidence of other crimes, wrongs, or acts is admissible to prove, among other things, intent, knowledge, and absence of mistake or accident. Minn. R. Evid. 404(b) (2017). When knowledge or intent is an element of the crime, other crimes may be admitted to prove knowledge or intent of the defendant. State v. Boykin, 172 754, 758 (Minn. 1969). Such evidence ?may be admitted as relevant to the 20 27-CR-18-5859 Filed in District Court State of Minnesota 95/2018 1:22 PM defendant?s criminal intent, and the closely associated issue of absence of accident.? State v. Fardan, 773 303?, 317 (Minn. 2009) (citing State v. Chambers, 589 466, 476?77 (Minn. 1999)). This ?requires an analysis of the kind of intent required and the extent to which it is disputed in the case.? Fardan, 773 at 317 (citing State v. Ness, 707 676, 697 (Minn. 2006)). Other crimes evidence is relevant and admissible in third degree murder cases. See Padden, 2000 WL 54240, at *3 (?Prior offenses may appropriately be considered in determining a person?s state of mind. See Minn. R. Evid. 40403)?). Each of the defendant?s prior acts as a police of?cer show the defendant employed a reckless state of mind on July 15, 201 7. i. Earlier on the night of July 15, 2017: disturbed person call. Just one and a half hours before the shooting, the defendant and Officer Harrity responded to the call of a woman with dementia wandering in the exact location where Ms. reported a woman in distress. in both cases, multiple 911 calls were made in an effort to have police arrive more quickly. In both cases, the defendant and Officer Harrity saw nothing obvious and within minutes decided there was no need to investigate further. Neither officer considered that the back?to?back calls from the same block might be linked, or that there may be a woman who had been in trouble for two or more hours. Neither officer exhibited any appreciable concern for a woman or women about whom there had been a total of five 911 calls in that short period of time. This lack of investigative curiosity and indifference to the woman or women who were the subject of these calls shows a disregard for humans and public safety. A police officer in that situation is supposed to be trying to help people. Instead, the defendant disassociated himself from the situation, sought no information, and made no attempt to engage with the person who 21 Filed in District Court State of Minnesota 9/5/2018 1:22 PM reported the disturbing conduct. This state of mind directly caused him to act recklessly and without regard to Ms. life 90 minutes later. Had the defendant actually been mentally engaged in his duties as a police of?cer that night evaluating the calls he was assigned to), his mind would not have recklessly defaulted to shooting first and asking questions later. He would have investigated before accelerating. ii. May 18, 2017: excessive use of force on a motorist. Fifty?eight days before the defendant killed Ms. he demonstrated his indifference to human life and public safety by acting in a dangerous and unprofessional manner toward a citizen during a routine traffic stop. In full daylight, the defendant pulled over a man for what was ultimately ticketed as nothing more than failing to signal a turn. With no justification that appears on squad video, body camera video, or in a police report, the defendant pulled out his gun, carried it toward the car, and pointed it into the driver?s window and at the driver?s head before uttering a word. As was the case on July 15, 2017, the defendant?s partner also inexplicably pulled his gun, but acted less aggressively than the defendant. This occurred out in the open, on a busy street with cars and pedestrians all around. As in this case, the defendant used his gun to escalate a situation, introducing the element of deadly force in what should have been a routine, safe encounter with an unarmed citizen. The fact that the defendant did not even write a report about drawing his gun or using force underscores how unnecessary such an action was. Like his failure to investigate potentially dangerous 911 calls, this shows his indifference to human life and dangerous recklessness as a police of?cer. 22 Filed in District Court State of Minnesota 9l5l2018 1:22 PM April 8, 2016: ignoring pending calls, March 31 2016: failing to investigate surroundings, and February 20, 2016: missing information. The incidents occurring during the defendant?s then?recent training as a police of?cer also demonstrate that he did not act with care toward or concern for the safety of the public he served. On April 8, 2016, two days before completing training and becoming a full-fledged Minneapolis Police Of?cer, the defendant was driving around in circles in an effort to actively avoid responding to pending calls. A police of?cer who seeks to avoid responding to calls for service is a police of?cer who is indifferent to the public he serves. On March 31, 2016, his FTO noted speci?cally that the defendant failed to apply the training he received and responded to a call using tunnel Vision, focusing on a smaller and smaller area in front of his car as he drove. The result was that then, as here, the defendant failed to look, scan, and observe in the manner required for a police of?cer to ensure personal and public safety. On that occasion, the PTO actually had to yell at the defendant to get him to snap out of it and focus on his whole environment rather than what was directly in front of him. The defendant acted similarly on February 20, 2016, when his FTO noted that the defendant missed important details when under stress. Speci?cally, he failed to get information he needed about a call and did not look beyond his immediate area. By failing to respond meaningfully and thoroughly to 911 calls, and by failing to evaluate the larger situation he was called to address, the defendant demonstrated the same disregard for citizens that he held on July 15, 2017, when he killed Ms. iv. March 5, 2016: failure to follow up on commitment to citizen. The defendant?s conduct on March 5, 2016 is particularly alarming and demonstrates shocking indifference to the public and complete disregard for safety. The defendant and his FTO responded to a call of a potential burglar knocking on doors in the evening and pretending 23 27-CR-18-6859 Filed in District Court State of Minnesota 915/2018 1 :22 PM to be a Century Link employee. The defendant gave the 911 caller his commitment to stay in the area and look for the imposter, and then did exactly the opposite by getting into his car and driving away, conducting no further investigation. The FTC documented the incident as a departure from training and accepted police behavior, and emphasized the importance of needing to look for a suspicious person. As in this case, the defendant showed disregard for a 911 caller by conducting no investigation into what the caller reported. In this 2016 incident, he demonstrated startling additional indifference by falsely reassuring the caller that he would make an effort to find the imposter who knocked on the caller?s door. This act shows the defendant?s lack of desire to protect and serve 911 callers, which is the same reckless approach and indifference he displayed on July 15, 2017. v. February 17, 2015: MMPI test results. Finally, the defendant?s evaluation best illustrates his indifference for human life which led to his actions on July 15, 2017. An evaluation intended to determine whether the defendant would act in a manner appropriate for public service as a police of?cer found that he was unsuited for the job. Speci?cally, the defendant self-reported that he disliked people, disliked being around people, and was disinterested in interacting with people. The degree to which the defendant experienced these feelings toward other people was shared by only 1.7% of the comparison group of police of?cer candidates used to validate the test. The defendant?s attitude toward people resulted in a greater likelihood that he, as a police officer, would become impatient with others over minor infractions. The defendant demonstrated this impatience both in the traffic stop of May 18, 2017, and in the current case. In the traffic stop, he immediately escalated the situation and introduced potentially deadly force into an event that was no more than a motorist failing to signal a turn. In the present case, there was no infraction 24 8-5859 Filed in District Court State of Minnesota 1:22 PM at all. Rather than take a few seconds to ?nd out that the ?gure on the other side of the car was the unarmed woman who had called 911, the defendant acted impatiently and impulsively for no justi?able reason by ?ring his gun. The defendant, also as predicted by the test results, proved to have trouble confronting subjects in situations where an of?cer is supposed to intervene, controlling situations, and demonstrating a command presence. The defendant?s work history proves that he overreacts, escalates benign citizen contacts, does not safely take control of situations, and, in the most egregious situations, uses his ?rearm too quickly, too recklessly, and in a manner grossly disproportional to the circumstances. The defense argues that the court should evaluate the evidence ?from the perspective of a reasonable of?cer on the scene, rather than with the 20/20 vision of hindsight,? citing Graham v. Connor, 490 US. 386, 396 (1989).5 If that is the case, the defendant?s prior acts have an added layer of relevance for the probable cause determination. Not only do the acts prove the defendant?s state of mind and recklessness for third degree murder, they more than establish that the defendant was never a reasonable police of?cer. No reasonable police of?cer would have killed Ms. under the same circumstances. The prior events in the defendant?s work as a police of?cer, along with his self?reported attitudes toward people in general, are relevant and persuasive evidence that the defendant acted without regard for the risk he knowingly created when he ?red his gun out the window and killed Ms. He is a person who has 5 The State cites the language from Graham only to respond to the probable cause argument raised by the defendant. The State does not concede, and does not waive future argument on, the applicability of Graham, nor the extent to which Graham may apply to this case. In particular, the State intends to address the applicability of the ?reasonable police of?cer? standard, the admissibility of evidence related to that standard, jury instructions, and other related matters in future motions and hearings. 25 Filed in District Court State of Minnesota 9/5/2018 1:22 PM ?cease[d] to care for human life and safety,? employed a reckless state of mind, and acted with indifference to human life on July 15, 2017. See State v. 194 276, 283 (1972). IV. THE ACTIONS WERE NOT DIRECTED AT Ms. IN PARTICULAR. The defendant argues that the court should dismiss the charges because his actions were ?an intentional act of self-defense and defense of others directed at the single individual standing before the driver?s side window,? and that he fired at a ?specific person,? which precludes a third degree murder charge. Def. Brief at 9. He is incorrect on both counts. The concept that, for third degree murder, the defendant?s actions should not be directed toward a particular person comes from case law. It is not an element of the offense. That case law has developed primarily from Minnesota appellate courts analyzing cases where defendants were convicted of intentional ?rst or second degree murder after being denied third degree murder instructions at trial. The defendants in those cases were convicted of more serious murder charges than the defendant is charged with here. The appellate courts found that because those defendants murdered known, specific people toward whom they had animus and motive, the recklessness and danger to more than one person required for third degree murder was absent. Compare State v. Zumberge, 888 688 (Minn. 2017) (affirming first degree premeditated murder conviction and holding defendant was not entitled to third degree murder instruction where he killed a neighbor with whom he had two?year feud), and State v. Wahlberg, 296 408 (Minn. 1980) (affirming first degree premeditated murder conviction and holding defendant was not entitled to third degree murder instruction where he killed a man with whom he had spent the night partying), and State v. Barnes, 713 325 (Minn. 2006) (rejecting constitutional challenge to first degree domestic murder statute in part because domestic abuse murder requires extreme indifference toward the life of a known domestic abuse 26 HER-1843859 Filed in District Court State of Minnesota 915/2018 1:22 PM victim while the disregard for human life for third degree murder does not), and Stiles, 664 at 315 (af?rming first degree premeditated murder conviction and ?nding defendant not entitled to third degree murder instruction where he killed his marijuana dealer during a robbery), with CRIMJ 1G 11.38 (third degree murder) (?eminently dangerous to human beings? and ?may not be speci?cally directed at the particular person whose death occurred?) (emphasis added). There are few appellate decisions analyzing third degree murder cases where that conviction or charge was the most serious charge in the case. A defendant?s conduct can be suf?ciently reckless for third degree murder even when no other persons are present and the ?depravity? is not particularly directed at the victim, meaning that there was no prior animus toward the victim nor evidence of speci?c intent to kill. See Padden, 2000 WL 54240 at *2 (holding third degree murder was proven where only defendant and victim were present when victim was killed, defendant had no animus toward victim in particular, and defendant would have killed someone else under the same circumstances); see also 194 at 276. The fact that the defendant killed one known person, Ms. Justine does not mean that his act at the time of the murder was specifically directed toward her. The painful reality is that the defendant had absolutely no idea who or what he was shooting. One would hope that if the defendant actually knew it was Ms. a 40-year-old, unarmed woman and citizen 911 caller trying to speak with him, he would have held his fire. Because the defendant did not know who or what Ms. was, his conduct was not directed at a particular person. The defendant?s argument that he ?red at a ?single individual? who posed a threat to him and Of?cer Harrity fails because that person did not exist. Again, Of?cer Harrity?s perceptions 27 Filed in District Court State of Minnesota 915/2018 1:22 PM cannot be attributed to the defendant and do not constitute the defendant?s state of mind. Of?cer Harrity never told the defendant he perceived or saw a threat, and the words ?Oh sh*t? or ?Oh Jesus? are profoundly insuf?cient to justify the defendant?s use of deadly force. Of?cer Harrity never saw an identi?able, or particular, person outside his window. Of?cer Harrity observed no threat to him, his partner, or anyone else. There is no evidence that the defendant could see or hear more than Of?cer Harrity.6 The defendant did not kill Ms. for any reason attributable to Ms. His attack was not based on any animus developed toward her before the shooting, including potentially justified animus an of?cer might have toward a threatening citizen. He made no effort to determine whether Ms. was a threat, a perpetrator, or anything else. Ms. could have been any person approaching the defendant?s squad man, woman, boy, or girl and the defendant would have pulled the trigger. As such, he is like the defendant in Padden, and would have killed anyone under the circumstances. 2000 WL 54240, at Also, the defendant?s act could not have been directed speci?cally at Ms. because he put so many others in danger when he ?red his gun. By ?ring his 9mm handgun inside his squad car and across his partner in a residential neighborhood, the defendant endangered Ms. Of?cer Harrity, the juvenile bicyclist, and anyone else who might have been in the area at the time. See argument, supra p.16. The defendant?s bullet was not directed at Ms. Justine in particular; it was a literal shot in the dark at someone or something wholly unidenti?ed and an act of extreme recklessness. The court should reject the 6 The defendant argues that he ?reacted in a dark alley in the middle of the night [to] a voice, a thump on the squad, [and] a body appearing at the driver?s side window.? Def. Brief at 7. Of?cer Harrity has said he experienced those things (although Of?cer Harrity notably omitted the thump on the squad and the voice when he ?rst spoke of the events at the scene), but there is no evidence that the defendant did. 28 Filed in District Court State of Minnesota 9152018 1:22 PM argument that there is no probable cause because the defendant?s actions were ?directed at a particular person.? V. THERE IS PROBABLE CAUSE TO BELIEVE THE DEFENDANT COMMITTED MANSLAUGHTER IN THE SECOND DEGREE. In Minnesota, person who causes the death of another . . . by the person?s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another . . . is guilty of manslaughter in the second degree.? Minn. St. 609.205(1) (2017). This requires proof of (1) Objective gross negligence on the part of the defendant, and (2) subjective ?recklessness in the form of an actual conscious disregard of the risk created by the conduct.? State v. McCormick, 835 498, 507 (Minn. Ct. App. 2013) (quoting State v. Frost, 342 317, 320 (Minn. 1983)). The objective aspect of the test requires proof that the act was ?a gross deviation from the standard of care that a reasonable person would Observe in the actor?s situation.? McCormick, 835 at 507 (quoting Frost, 342 at 319). The subjective aspect requires proof Of the actor?s state Of mind. Id. This is ?generally proven circuinstantially, by inference from words or acts of the actor both before and after the incident . . . and it may be inferred that ?a person intends the natural and probable consequences of their actions.? McCormick, 835 at 507, 511 (quoting State v. Johnson, 616 720, 726 (Minn. 2000)). A. There was objective gross negligence on the part of the defendant. The defendant fully abandoned his duty of care on July 15, 2017, by making absolutely no assessment of Ms. before deciding to shoot her. Even in an absurd hypothetical situation where he had some reason to think Ms. was a threat, he had a duty to ask her to step back, show her hands, identify herself, or at least warn her he was going to shoot her 29 Filed in District Court State of Minnesota 9/5/2018 1:22 PM before doing so. There is plenty of direct and circumstantial evidence of objective gross negligence. As such, this element of the test is satis?ed. B. There was subjective recklessness and conscious disregard for human life on the part of the defendant. As previously argued, the defendant acted with no regard for human life on July 15, 2017. As a trained Minneapolis Police of?cer, he was fully aware that ?ring a shot across his paitner?s body at an unidenti?ed silhouette created a substantial risk of death or great bodily harm to three people in the immediate vicinity. Under these circumstances, his subjective state of mind was that he was going to shoot without regard to who might be injured or killed. Moreover, the circumstances immediately leading up to the shooting?as well as the defendant?s prior acts of recklessness in his capacity as a police of?cer?also prove his subjective recklessness. For these reasons, the court should ?nd the second degree manslaughter charge is also supported by probable cause. CONCLUSION The defendant, a trained police of?cer, abandoned all caution and duty to the public he was sworn to protect on July 15, 2017. He recklessly failed to assess the situation and intentionally ?red his gun through an open car window with absolutely no idea who or what he was shooting. His bullet could have easily killed or injured his partner, but instead killed Justine the unarmed 911 caller who needed his help. There was no evidence at the time, nor has any materialized since, that there was ever a threat to the defendant or Of?cer Harrity that would have justi?ed the use of deadly force. The defendant did not commit this murder with a particular'design on Ms. but would have killed whomever approached, whether it was a victim, perpetrator, 911 caller, citizen, dog walker, or bicyclist. This disregard for human life 30