2014-M-258       State of Minnesota, Respondent, vs. Thomas Lee Fairbanks, Appellant.

Appellant Thomas Lee Fairbanks was found guilty by a jury of first-degree murder of a peace officer, failure to render aid to a shooting victim, four counts of first-degree assault, two counts of second-degree assault, being a felon in possession of a firearm, and attempted theft of a motor vehicle in connection with the shooting death of Mahnomen County Deputy Sheriff Christopher Lee Dewey. 

On appeal, Fairbanks makes four arguments: (1) the district court abused its discretion when it transferred venue to Polk County; (2) the common law “year-and-a-day rule” barred the murder prosecution; (3) the district court abused its discretion by admitting into evidence several autopsy

photographs and a “spark-of-life” photograph of Deputy Dewey; and (4) the evidence was insufficient to support the jury’s verdicts finding Fairbanks guilty of four counts of first-degree assault. 

We reverse one of the first-degree assault convictions, but otherwise affirm.

HELD:  1. The district court did not abuse its discretion when, after granting appellant’s unopposed motion to transfer venue, it transferred the case to a county to which appellant objected.  In choosing the venue where the case would be tried, the district court properly identified, considered, and weighed all relevant factors, and took additional steps to mitigate potential prejudice and give defendant a fair trial before an impartial jury.

2. The prosecution was not barred by the common law “year-and-a-day rule.”  If the rule ever existed in Minnesota, it did not survive the 1963 enactment of Minnesota’s modern criminal code.

3. The district court did not abuse its discretion in admitting into evidence autopsy and “spark-of-life” photographs of the victim.  The prosecution’s reference to the photographs in opening statement was not improper.

4. The evidence is sufficient to support defendant’s convictions on three counts of first-degree assault of law enforcement officers.  But conviction on a fourth count must be reversed because the evidence is insufficient to prove that defendant fired in the direction of the law enforcement officers.

 Affirmed in part, reversed in part.

Lillehaug (Gildea, Page, Anderson, Dietzen, Stras, and Wright)

[MURDER]

A11-2164,