State of Minnesota v. Leonard James Fisherman, Jr. ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1591
State of Minnesota,
Respondent,
vs.
Leonard James Fisherman, Jr.,
Appellant.
Filed September 21, 2015
Affirmed
Ross, Judge
Sherburne County District Court
File No. 71-CR-12-1906
Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, St. Paul,
Minnesota; and
Kathleen A. Heaney, Sherburne County Attorney, Timothy A. Sime, Assistant County
Attorney, Elk River, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Johnson, Presiding Judge; Peterson, Judge; and Ross,
Judge.
UNPUBLISHED OPINION
ROSS, Judge
St. Cloud prison inmate Leonard Fisherman repeatedly punched and kicked
another inmate in the head until he appeared dead. Appealing his consequent conviction
of first-degree assault, Fisherman argues that, as a “sovereign citizen,” he is exempt from
the criminal laws of Minnesota; that the prosecutor improperly informed the jury that he
had previously killed someone; and that the district court misstated the reasonable-doubt
standard. He also maintains that the district court should have ordered a pretrial mental
competency examination. Fisherman’s arguments range from baseless to unconvincing.
We affirm.
FACTS
Leonard Fisherman raped a 15-year-old girl at knifepoint and is serving a prison
sentence in the St. Cloud correctional facility. In September 2012 a corrections officer
saw (and three surveillance cameras recorded) Fisherman, who stands 6’5” and weighed
248 pounds, repeatedly punching another inmate on an elevated walkway. The inmate fell
to the walkway and lay there, not fighting back and apparently unconscious, while
Fisherman continued to kick him repeatedly in the head. A corrections officer ordered
Fisherman to stop, but he would not. The victim inmate fell, head first, from the walkway
to the concrete floor eight feet below. Another officer arrived and saw the inmate lying
motionless in a pool of blood, appearing to be dead. Fisherman pounded his chest and
shouted, “Just think, I just killed this motherf- - -er!”
The state charged Fisherman with first-degree assault.
The trial did not begin on schedule. On the day set for trial, Fisherman at first
refused to leave his cell because the clothes his lawyer bought for him did not fit. He
eventually presented himself but told the trial judge that he was not ready for trial for two
reasons. The first was his clothes. He said that his family was bringing him clothes with a
2
better fit, and he wanted to wear those clothes for trial. The second reason was that he
wanted more time to discuss trial strategy with his attorney. The district court explained
that Fisherman could be positioned to minimize the jury’s noticing the fit of his clothes.
Fisherman then threatened to fire his attorney to prevent the trial from beginning. He
enforced his threat by adding, “[I]f I fire my attorney I’m not -- I’m incompetent to
proceed . . . . I’m going to need an attorney to cross-examine. I’m incompetent. I can’t
represent myself at trial. I don’t know the objections.” The district court acquiesced and
agreed to delay the trial until the following morning.
Trial commenced the next day. Fisherman was “comfortably attired,” and his
attorney said that they “had more than enough time” to discuss their strategy. The jury
then heard from multiple witnesses.
It first heard from the corrections officer who witnessed the beating. The officer
explained that the pummeling occurred on a walkway suspended eight feet off the floor.
The officer was on the floor level and witnessed Fisherman repeatedly throw “closed-fist
punches” at the inmate’s head. He observed Fisherman knock the inmate unconscious
before repeatedly kicking him in the head as he lay motionless on the walkway. The
officer told Fisherman to stop. Fisherman continued to kick the inmate’s motionless body
toward the edge of the walkway. The officer sprayed Fisherman with a chemical. At that
moment, the victim inmate fell head first from the walkway to the concrete floor.
An emergency responder attended to the victim and testified that, based on the
large pool of blood under the victim, he assumed that the man was dead. The jury saw
video footage of the assault from three security cameras.
3
A surgeon testified that he treated the victim after he was brought to the hospital.
The victim had a closed-head injury, a large trauma-induced epidural bleed, and a skull
fracture. The surgeon explained that the injuries were life-threatening and called for
immediate surgery. He testified that repeated punching and kicking to the head could
cause epidural bleeding, as could falling eight feet onto a concrete floor.
The prosecutor began his closing argument by replaying two of the three video
recordings. At the start of his statement, Fisherman interrupted, blurting out to the jurors,
“I shouldn’t have been in prison, guys. I’m falsely in prison.” The prosecutor continued,
first quoting Fisherman’s post-beating boast:
“Just think, I killed that f- - ker,” as the defendant proudly, up
in the gallery, looking over the body of [the victim], laying
there with a pool of blood spreading out from his head.
Beating his hands on his chest proud, proud that he thinks he
ended another life, or a life. The silver lining of this case is
that he was wrong on that.
The jury found Fisherman guilty of first-degree assault. Fisherman’s appeal follows.
DECISION
I
We first address a jurisdictional argument that Fisherman makes only in his pro se
supplemental brief. Fisherman argues that he is a “sovereign citizen,” exempt from the
laws of Minnesota, and that the district court lacked jurisdiction over his prosecution. We
have considered this argument to the full extent that it merits consideration. The
“sovereign citizen” jurisdictional defense has “no conceivable validity in American law.”
United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990). The district court had
4
jurisdiction to try Fisherman because his criminal act occurred within Minnesota. See
Minn. Stat. § 609.025 (1) (2012).
II
Fisherman argues that we must reverse his conviction because the prosecutor’s
closing argument implied that Fisherman was serving a murder sentence for killing a
different person, and the prosecutor therefore violated the parties’ agreement that the
prosecutor could not inform the jury as to why Fisherman was incarcerated. The
argument is unconvincing.
Appellate courts review claims of prosecutorial misconduct under a modified
plain-error test if, as in this case, the defendant did not object during trial to the alleged
misconduct. State v. Ramey, 721 N.W.2d 294, 298–99 (Minn. 2006). Under that standard,
Fisherman must first identify an error that is plain. See id. at 298. That is, he must
identify an error that “contravenes case law, a rule, or a standard of conduct.” State v.
Jones, 753 N.W.2d 677, 686 (Minn. 2008). If Fisherman identifies a plain error, the state
then bears the burden of demonstrating that the prosecutor’s misconduct did not prejudice
Fisherman’s substantial rights. See Ramey, 721 N.W.2d at 300. That is, the state must
show that there is no reasonable likelihood that the misconduct had a “significant effect”
on the verdict. Id. at 302. Even if the appellant’s claim of error clears these hurdles, we
will reverse only if the error also “seriously affects the fairness and integrity of the
judicial proceedings.” State v. Little, 851 N.W.2d 878, 884 (Minn. 2014).
Fisherman’s claim does not clear even the first hurdle. We see no misconduct in
the prosecutor’s statement that Fisherman thought he “ended another life.” Fisherman
5
puts unjustified emphasis on the word “another.” It is true that a reasonable juror might,
as Fisherman argues, speculate that “another life” implies that the battered inmate is at
least Fisherman’s second victim. But even if the ended-another-life phrase was left
unclarified, at worst, the phrase is ambiguous, and a prosecutor’s ambiguous remark is
generally not misconduct. See State v. Lasnetski, 696 N.W.2d 387, 398 (Minn. 2005)
(finding a prosecutor’s statement permissible where it could be considered either inviting
the jury to deliberate quickly or showing appreciation for the jurors’ service over the
holidays). The phrase is ambiguous because a reasonable juror might just as naturally
suppose that “another life” refers simply to a life other than Fisherman’s life. This
construction of “another” is certainly no stretch. When, for example, the legislature
dictates that “[w]hoever . . . intentionally causes the death of another person in the heat
of passion” commits manslaughter, Minn. Stat. § 609.20 (2014) (emphasis added),
reasonable people understand that “another person” refers to a person other than the
killer, not a person other than some previous victim of the killer. And this usage is not
confined to law but occurs in everyday conversation. A mother might, for example,
instruct her son, “Never copy another student’s homework.” We presume that a child of
normal intelligence would not suppose that he is being accused of previously copying
homework, but that “another” implies a student other than himself. Listing common
examples of this usage of “another” could extend many pages.
Anyway, there is little ambiguity here. The prosecutor did not use the term
“another life” by itself; he rephrased it. The prosecutor minimized any ambiguity by
adding, “a life,” in his immediate rephrasing: “Beating his hands on his chest proud,
6
proud that he thinks he ended another life, or a life.” The prosecutor’s appendage to the
statement made it almost impossible for any juror to think he was suggesting that
“another” referred to a previous killing. And without question, Fisherman thought he had
ended “a life”—the beaten inmate’s life.
We add that even if we accepted Fisherman’s argument that the prosecutor
persuaded the jury that Fisherman killed someone previously, still we would not reverse.
This is because the state easily rebuts the presumption that Fisherman’s substantial rights
were prejudiced by the alleged misconduct. On this record, there is “no reasonable
likelihood” that the alleged misconduct had a “significant” effect on the verdict. See
Ramey, 721 N.W.2d at 302. This is because the jury actually saw the crime of which it
found Fisherman guilty. Jurors watched a video recording that depicted Fisherman
kicking the defenseless, unconscious man repeatedly in the head until he fell eight feet
headlong onto concrete; and then they heard testimony describing Fisherman beating his
chest celebrating his belief that he had just kicked the man to death. After actually
witnessing Fisherman’s vicious battering and hearing about his merriment, it stands
beyond reason that the jury convicted Fisherman of grievously assaulting the man
because of something other than the evidence that Fisherman grievously assaulted the
man. The jurors received no evidence contradicting the notion that what they saw on the
video recording was Fisherman committing the crime, and Fisherman’s only defense was
that the assault was not serious enough to constitute a first-degree offense. The
overwhelming and unopposed direct evidence alone, not the prosecutor’s reference to
“another life,” obviously explains the jury’s verdict.
7
III
Fisherman argues that the district court erroneously diluted the state’s burden of
proof and impermissibly instructed the jury that it could consider Fisherman’s potential
punishment while deliberating. He did not object to the instructions in the district court,
so we review the challenged instruction only for plain error. See State v. Hughes, 749
N.W.2d 307, 315 (Minn. 2008). The defendant’s right to due process requires the district
court to instruct the jury that the state must prove beyond a reasonable doubt each
element necessary to convict the defendant. Sullivan v. Louisiana, 508 U.S. 275, 278–79,
113 S. Ct. 2078, 2080 (1993). The district court instructed the jury that Fisherman “is
presumed innocent” and that this presumption “remains with the defendant unless and
until he has been proven guilty beyond a reasonable doubt.” The district court repeated
this reasonable-doubt instruction three times more. The district court summarized its
instructions explaining that jury members “are judges of the facts” and emphasizing why
the jury’s role is important:
It is important in the respect that a person who is guilty of the
commission of a crime be brought to justice and be punished.
It is equally important that a person who is not guilty of the
commission of a crime should not be punished for something
he did not do. This concludes my final instructions.
Fisherman concedes that the district court accurately and repeatedly explained the
reasonable-doubt standard. But he argues that the district court “diluted” the standard in
its statement that “a person who is guilty of the commission of a crime [should] be
brought to justice and be punished,” while “a person who is not guilty of the commission
of a crime should not be punished for something he did not do.” But he does not explain
8
how, and we do not believe that, this statement is at all linked to the state’s burden of
proof. Not only does the statement include no reference to the burden of proof, the
district court made the statement long after accurately declaring the reasonable-doubt
standard.
We also are unconvinced by Fisherman’s argument that the district court’s
remarks “implied that the jury should consider the issue of punishment” in assessing
guilt. The district court did not suggest that the issue of punishment should influence the
question of guilt but that the issue of guilt would influence the question of punishment.
And caselaw rejects Fisherman’s argument that the district court commits plain error any
time it injects the question of punishment into the jury’s consideration regardless of what
the injection entails. See State v. Finley, 214 Minn. 228, 231–32, 8 N.W.2d 217, 218
(1943) (holding no error where district court injected issue of punishment into its
instructions by informing the jury it would consider defendant’s punishment because it
has “a lot more information about [the defendant] than you have now”). We see no error
in the challenged instructions.
IV
Fisherman argues that the district court was obligated, sua sponte, to order that he
be examined to determine his mental competency. The court should have known that he
may be incompetent, he argues, because he expressly declared to the court that he was
“incompetent” and the court also knew that he had been held in solitary confinement
before trial.
9
Fisherman’s argument based on his incompetence declaration is specious. In an
effort to leverage the district court to postpone his trial until his family arrived with
better-fitting clothing, Fisherman threatened to fire his attorney and thereby force a delay,
insisting, “I’m incompetent. I can’t represent myself at trial. I don’t know the objections.”
The context of Fisherman’s incompetence statement plainly indicates that he was
declaring himself to be tactically incompetent, not mentally incompetent. Every district
court judge would recognize that Fisherman was asserting only that he was unskilled in
the art of lawyering. No rational jurist paying attention to context would have ordered a
competency hearing based on Fisherman’s declaration.
Fisherman provides no legal or academic authority supporting his theory that
solitary confinement reduces a defendant to mental incompetency, let alone supporting
his theory that the notion is so evident that a district court judge who knows about a
defendant’s solitary confinement must order a competency hearing sua sponte.
Affirmed.
10