NOTE: Since the case State v. Noor, the law regarding this subject has changed, and parts of this blogpost should not be considered “good law” anymore.
George Floyd and Derek Chauvin
On May 25, 2020, George Floyd died while in the custody of Minneapolis police officer Derek Chauvin. Mr. Chauvin was originally charged under Minnesota law with 3rd degree murder, but recently the charges were upped to 2nd degree. What changed? Well, let’s follow the breadcrumbs of the law and see if we can decipher what happened.
1st Degree Murder in Minnesota
First degree murder is traditionally known as premeditated murder. In Minnesota, first degree murder is defined under Section 609.185, which includes several other modern alternatives for the crime. Laypersons might think that premeditation requires extensive planning and calculation (e.g. going out, buying a gun, driving to someone’s house, and shooting them, with the intent to kill at each step) but this is not the case in modern law. Any first year criminal law student should know that the premeditation element to first degree murder can be formed instantaneously. See e.g. State v. Neumann, 262 N.W.2d 426 (Minn. 1978). Now, as a criminal defense attorney, am I not necessarily happy with the modern interpretation of premeditation, but the law is what the law is, not what it should be.
Mr. Chauvin is not currently charged with first degree murder.
2nd Degree Murder in Minnesota
This is the most serious crime Derek Chauvin is currently charged with. Minnesota defines 2nd degree murder under Section 609.19. It encompasses traditional murder (no premeditation), drive-by shootings, certain felony-murders, and what I would call “protective order” murders.
Mr. Chauvin is charged under the felony-murder subsection, 609.19(2)(1), which states that a person is guilty of 2nd degree murder if he: “causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense [with certain excepted felonies] . . . .” The complaint alleges the predicate felony as 3rd degree assault, which is an assault that inflicts “substantial bodily harm” upon the victim.
The Merger Doctrine and Felony-Murder
Here, Minnesota law throws a little twist into this case. In most states, there is a legal concept called the merger doctrine. From the Legal Information Institute, merger means that “if a defendant commits a single act that simultaneously fulfills the definition of two separate offenses . . . the defendant will only be charged with the greater offense.” That is, the predicate felony must be a distinct crime from felony murder. Usually the elements of assault are incorporated into the elements of murder.
Practically speaking, this means that a prosecutor usually cannot charge a defendant with felony-murder if the claimed predicate felony is assault. As such, in a state that follows the merger doctrine a prosecutor couldn’t charge Mr. Chauvin with 2nd degree murder under a theory of felony murder. They would instead have to rely on proving intent to kill under Section 609.19(1)(1).
But Minnesota doesn’t have the merger doctrine in this case. In State v. Branson, 487 N.W.2d 880 (Minn. 1992), the Minnesota Supreme Court held that any felony, except those proscribed by statute, could serve as the basis for a felony-murder charge. This includes felony assault.
So, in most states Mr. Chauvin probably wouldn’t be charged with felony-murder because the merger doctrine would legally prevent assault from qualifying as the predicate felony. But in Minnesota, the lack of the merger doctrine makes this charging decision entirely appropriate.
3rd Degree Murder in Minnesota
This was the most serious crime Mr. Chauvin was originally charged with before they added 2nd degree murder. There are two types of 3rd degree murder under Sec. 609.195, but we are only concerned with subsection (a). This is known as “depraved mind” murder:
“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.”MN 609.195(a)
Again, Minnesota’s laws throw a twist into this case, because “depraved mind” murder is not the same as the “depraved heart” murder they teach in law school.
In State v. Carlson, 328 N.W.2d 690, 694 (Minn. 1982), the Minnesota Supreme Court reiterated that, according to its precedent, “depraved mind” murder is “intended to cover cases where the reckless or wanton acts of the accused were committed without special regard to their effect on any particular person or persons; the act must be committed without a special design upon the particular person or persons with whose murder the accused is charged.”
In State v. Barnes, 713 N.W.2d 325, 331 (Minn. 2006), the Court went on to clarify explicitly that third-degree murder “cannot occur where the defendant’s actions were focused on a specific person.”
What exactly does that mean? It means that where evidence shows the defendant’s actions were directed against the victim alone, 3rd degree murder is not the proper charge, and 3rd degree murder is not necessarily a lesser-included offense of 1st or 2nd degree murder.
As such, the Minnesota Supreme Court has found it is improper to give jury instructions for 3rd degree murder as a lesser-included offense when the defendant’s actions were solely directed at the victim. See Carlson, 328 N.W.2d at 693 (affirming the trial court’s refusal to give a 3rd degree murder instruction in case where evidence indicated that all of the defendant’s acts were directed at the victim, and not at any of the other five bystanders).
Back to the George Floyd case…
Armed with this knowledge, it becomes clear why they increased the charge against Mr. Chauvin to 2nd degree murder: the current evidence shows that he legally couldn’t be found guilty of 3rd degree murder, because his actions (e.g. knee to the neck) were directed specifically against Mr. Floyd. And because Minnesota does not follow the merger doctrine, assault is an entirely appropriate predicate felony to a charge of felony-murder.
In this case the law doesn’t merely suggest that the 3rd degree charge should be changed, it requires it. With the evidence revealed up to this point, as a matter of law it is unlikely that he could be found guilty of 3rd degree murder. The Court probably wouldn’t even give that instruction to the jury.
Stowers & Sarcone
Minnesota’s murder statutes are perfect examples of how the law is not always intuitive. At Stowers & Sarcone, we handle all types of criminal cases, from simple traffic tickets to complex drug interdiction or lottery fraud crimes. Give us a call at 515-224-7446 and let us fight for YOU!