2009-M-114             State of Minnesota, Respondent, vs. Eugene Erick Fort, Appellant.

Appellant was convicted of first-degree premeditated murder and first-degree murder while committing burglary for stabbing 11-year-old Marcus Potts 44 times to keep the witness quiet.

Fort asserts five errors, and also raises additional arguments in his pro se brief.  We affirm in part and hold that Fort’s asserted errors do not require reversal of his first-degree premeditated murder conviction.   We do, however, reverse Fort’s conviction for first-degree felony murder.

First, Fort argues that the district court erred in admitting DNA evidence obtained during the December 27, 1990, search because the warrant lacked probable cause.  The Fourth Amendment of the United States Constitution and Article I, Section 10 of the Minnesota Constitution require probable cause prior to the issuance of a warrant.  Here, it is undisputed that the police had warrants when they searched Fort’s home both the first and second time. A search warrant is supported by probable cause if there is a “fair probability that contraband or evidence of a crime will be found in a particular place.”

While the first warrant application sought “[a] knife, bloody clothing, footwear, evidence of injury . . . [and] a red and white passenger vehicle,” the second warrant application specifically sought “traces of blood, bloodlike substance, [and] bloodlike impressions” in addition to bloody clothing and a knife.  The second application included an affidavit that clearly stated that the BCA equipment could identify evidence that was not previously detected.  The affidavit provided “the issuing judge with new information sufficient to indicate that items sought, but not found, during prior searches will now be

found.”  Therefore, we conclude that there was a “substantial basis” for the issuing judge to make the determination that new evidence would be found, and we affirm the decision of the district court to admit the evidence.

Second, Fort contends that the State did not present sufficient evidence to show that the killing was premeditated.  When reviewing sufficiency of the evidence, we view the evidence “in the light most favorable to the verdict and assume that the fact-finder disbelieved any testimony conflicting with that verdict.”Circumstantial evidence “is entitled to the same weight as any other evidence” but must be “consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis other than guilt.”  The conviction will not be reversed unless, “giving due regard to the presumption of innocence and the prosecution’s burden of proving guilt beyond a reasonable doubt,” the jury could not have found the defendant guilty.

Premeditation is generally proven through the defendant’s actions prior to the killing, motive inferred from the defendant’s prior relationship with the victim, evidence as to the nature of the killing from which it can be inferred that the killing was premeditated, or a combination of such evidence.  Fort argues that the State did not introduce sufficient evidence to prove premeditation.  Again, we disagree.

Third, Fort contends that the district court erred in sentencing him on both first-degree premeditated murder and first-degree felony murder.  Minnesota law provides that the crime of first-degree murder can be proved by premeditation or by murder in the course of burglary.  The State concedes that a defendant may only be convicted for one count of first-degree murder in connection with one murder.  Accordingly, we vacate Fort’s conviction for first-degree murder while committing burglary.  Our decision today, however, does not disturb Fort’s sentence for first-degree premeditated murder, and Fort will continue to serve a life sentence without possibility of parole.

Fourth, Fort next argues that the district court misstated the law when it instructed the jury on the elements of first-degree intentional murder in the course of committing burglary.  Specifically, Fort argues that the district court erred when it instructed the jury that “[t]he second possibility for the fourth element of Murder in the First Degree While Committing Certain Crimes is that Mr. Fort committed or attempted to commit a crime while in the building, that crime being an assault.”  Because we have vacated Fort’s conviction for first-degree murder while committing burglary, we need not discuss whether this instruction was erroneous.  

Fifth, Fort argues that the district court should have ordered a new trial because of the discovery of new evidence.  Specifically, Fort contends that three witnesses who testified at the evidentiary hearing said that they heard Rice confess to committing the crime, and that, as a result, Fort should be given a new trial so that the testimony of those witnesses can be considered by a jury.

In order to obtain a new trial based on new evidence, the defendant must show that: (1) the evidence was not known to him or his counsel at the time of trial; (2) the failure to learn of the new evidence was not because of lack of diligence; (3) the evidence is material and is not impeaching, cumulative, or doubtful; and (4) the evidence is likely to produce an acquittal or more favorable result for the defendant.  When considering the content of testimony at a hearing, we bear in mind that the district court “had the opportunity to observe the demeanor of the witnesses when they testified” and review the district court’s decision to deny a new trial under an abuse of discretion standard.  Both Fort and the State agree that Fort has satisfied the first two prongs of the test, because none of the evidence was known to Fort or his counsel, and the witnesses only came forward after the trial had ended.

Therefore, we restrict our analysis to the elements of materiality and results.  In order to be material, and not impeaching, cumulative, or doubtful, the confession of a purported alternative perpetrator must “come forward in a credible manner from a credible source.”  For the defendant to prove that the new evidence would produce a more favorable result, the defendant must show more than the mere “theoretical possibility” that the new testimony “might alter the jury’s verdict.”  Furthermore, the evidence must be admissible at trial in order to be able to change the outcome.

Here, the district court held a hearing and took testimony from four witnesses purporting to offer alternative perpetrator evidence.  After hearing the testimony, the district court made specific findings that the evidence of the supposed confession was “simply too doubtful to support . . . a new trial” and that the proffered testimony lacked credibility.  We hold that the district court did not abuse its discretion in making its determination and affirm the decision not to grant a new trial.

Sixth, Fort also alleges various errors in his pro se brief.  Fort echoes his counsel’s arguments regarding sufficiency of the evidence for premeditation and for a new trial based on newly discovered evidence, which we need not discuss in detail for a second time.  He also argues: (1) there was a lack of probable cause for the warrant; (2) the jury instructions on felony murder were unclear and did not require unanimity on each element; and (3) that the judge should have given instructions on lesser-included

offenses.  We reject these claims.

               Magnuson (Page, Paul Anderson, Meyer, Barry Anderson, Gildea, and Dietzen)

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