The media has engaged in the phrase-specific reporting of the “murder” of George Floyd. Some entities or people called for first-degree murder and resisted lessor charges. There was (and is) world-wide pressure to give Derek Chauvin the maximum penalty. Prosecutors settled on second and third-degree murder (“Murder One” was never a viable option).
A growing number of people in Minnesota are concerned over the Minnesota Court of Appeals decision to require Hennepin County Judge Peter Cahill to reinstate the charge of third-degree murder.
One of the concerns is that the Minnesota Supreme Court will reverse a conviction on that count; there is a chance that the jury will acquit on the second-degree murder account based on causation.
The trial court (we think rightfully) rejected third-degree murder. However, the intermediate appeals court ordered that the charges should include this count. Some argue that altering the statutory definition of third-degree murder to fit the alleged facts in this case wrongfully redefined the statute. The Minnesota Supreme Court will likely weigh in on this issue if there is a conviction or in their review of a related matter. Here is one such argument provided to us.
Using of Noor to Convict Chauvin
Before talking at all about Chauvin, it is essential to look to the conviction of Mohamed Noor. Noor is a Somali-American former Minneapolis police officer sentenced to twelve and a half years for the fatal shooting of a Caucasian female while responding to a reported sexual assault. Noor was convicted of third-degree murder and second-degree manslaughter.
However, Noor’s conviction is important because it led to an appeals decision on the definition of third-degree murder pursuant to Minn. Stat. § 609.195(a), which provides:
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 and may be sentenced to imprisonment for not more than 25 years.
This is important because, in the Chauvin trial, it is very evident Chauvin’s actions were specifically targeted at Mr. Floyd, and because Derek Chauvin in the video, though seemingly indifferent, does not appear to be out of control or in the heat of passion.
Analysis – Multiple Target Requirement
With that in mind, let us turn to the appellate ruling in Noor’s case.
To sustain a conviction of third-degree murder, the prosecution must prove a person committed an act that (1) caused the death of another, (2) was eminently dangerous to others, and (3) evinced a depraved mind without regard for human life. State v. Hall, 931 N.W.2d 737, 740-41 (Minn. 2019). Noor specifically challenged the second and third elements.
His first argument claimed that “because he ‘directed his actions at a particular person,'” his shooting across the car at a particular person his action was not “eminently dangerous to others.” State v. Noor, A19-1089, 2021 WL 317740, at *4 (Minn. App. Feb. 1, 2021), review granted (Mar. 1, 2021). More simply, “Noor contend[ed] that, because the evidence show[ed] that his death-causing act was directed at the person who appeared outside of the squad car, he [could not] be convicted of third-degree murder.” Id.
Over 100 years ago, the Minnesota supreme court stated that third-degree murder is “intended to cover cases where the reckless, mischievous, or wanton acts of the accused 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.” State v. Lowe, 66 Minn. 296, 68 N.W. 1094, 1095 (1896). In Lowe, the Minnesota supreme court further clarified, “[i]t is, however, necessary that the act was committed without special design upon the particular person or persons with whose murder the accused is charged.” Id.
However, from this ruling, the Court of Appeals in Noor found “Lowe establishe[d] that third-degree murder may occur even if the death-causing act endangered only one person” Noor, A19-1089, 2021 WL 317740, at *5 (Minn. App. Feb. 1, 2021), review granted (Mar. 1, 2021).
Thus, what the court seemingly ignored, is that although a third-degree murder charge may only have endangered one person, it must be an act that could have endangered more than one person.
In a more recent case, the state supreme court emphasized that “[t]third-degree murder ‘cannot occur when the defendant’s actions were focused on a specific person.” State v. Zumberge, 888 N.W.2d 688, 698 (Minn. 2017) (quoting State v. Barnes, 713 N.W.2d 325, 331 (2006)).
However, despite this precedent, the court in Noor still held that “a conviction for third-degree murder under Minnesota Statutes section 609.195(a) may be sustained even if the death-causing act was directed at a single person.” A19-1089, 2021 WL 317740, at *7 (Minn. App. Feb. 1, 2021), review granted (Mar. 1, 2021).
Analysis – Depraved Mind Requirement
Third-Degree murder also requires a person “perpetrating an act eminently dangerous to others evincing a depraved mind, without regard for human life.” Recently, in State v. Coleman, the Minnesota supreme court reiterated that the “mental state required for third-degree depraved-mind murder is ‘equivalent to a reckless standard.'” 944 N.W.2d 469, 478 (Minn. App. 2020) (quoting Barnes, 713 N.W.2d at 332), review granted (Minn. June 30, 2020).
This must be viewed in light of another important part of the Noor decision, in which the court stated, “the reckless nature of a [Noor’s] act alone may establish that the defendant acted with a depraved mind within the meaning of [third-degree murder].” State v. Noor, A19-1089, 2021 WL 317740, at *8 (Minn. App. Feb. 1, 2021), review granted (Mar. 1, 2021). However, as the dissent noted in Noor, a depraved mind usually requires a person to be “inflamed by emotions, disappointments, and hurt to such degree that he ceased to care for human life and safety.” State v. Noor, A19-1089, 2021 WL 317740, at *19 (Minn. App. Feb. 1, 2021), review granted (Mar. 1, 2021) (citation omitted).
Thus, the court of appeals ruling makes third-degree murder both: (1) not require the act to target multiple people and (2) requires no more than general ‘reckless’ behavior.
An important side note to keep in mind during this analysis is that second-degree manslaughter requires “the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.”
The seemingly unreconcilable part of this opinion is that without the targeted action and depraved mind requirements of third-degree murder, the statutory requirements for third-degree murder and second-degree manslaughter seem nearly identical. Both require a person to cause the death of another. The distinguishing factors of third-degree murder were (are) the depraved mind and multiple target requirements. Without these, third-degree murder essentially becomes “a reckless act that causes the death of another,” aka, the definition of second-degree manslaughter.
However, Chauvin’s case is still different from Noor’s as causation is still a factor in 3rd-degree murder. Thus, although the charge has been reinstated, it faces the same causation problem of 2nd-degree murder. The Supreme Court has already granted review of the Noor decision. It should reverse based on the single victim factor issue.
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 and may be sentenced to imprisonment for not more than 25 years. (Third-Degree Murder) Minn. Stat. Ann. § 609.195 (West).
A 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. (Second-Degree Manslaughter). Minn. Stat. Ann. § 609.205 (West).