Is five seconds enough time to premeditate murder?

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By Jay Donald Jerde

How quickly can someone premeditate murder? That question split the Minnesota Supreme Court 4-3 in affirming a conviction in State v. Palmer on Wednesday.

The majority pointed out that Keonne Alexander Palmer had wiped his fingerprints off bullets before placing them in his brother’s .22-caliber gun and that he fired five shots from that gun into Ernest Moss, pausing at one point for two to five seconds. The motive was failure to pay Keonne Palmer’s brother for cocaine.

But for three justices, five seconds seemed too brief to premeditate, especially considering that Palmer pulled the gun out of his brother’s hand before firing, and that Palmer and Moss were friends.

The decision affirms the Stearns County District Court, which convicted Palmer of first-degree premeditated murder and sentenced him to life in prison with no possibility of release.

“This is not a textbook premeditation case,” said Shan Wang, assistant chief of the Criminal Division for the Stearns County Attorney’s Office. Wang was the prosecutor at trial.

Although Palmer’s planning was not the type one sees in a legal drama — “It wasn’t days, it wasn’t months, it wasn’t hours” — there was premeditation in Palmer’s actions, Wang said.

“I certainly believed the case was solid … but I did hear the oral arguments and was not surprised about the concerns of premeditation in the dissent,” Wang said. He noted that on appeal it is important for the reviewing court to defer to the initial fact-finder.

Calls to Palmer’s attorneys and to the Attorney General’s Office that represented the state on appeal were not immediately returned.

Facts

Palmer’s brother, Da’Leino Palmer, sold crack cocaine to Moss. Moss was to repay Da’Leino Palmer $250 to $300 within a week. Da’Leino Palmer needed the money to pay his suppliers. Moss didn’t pay on schedule.

Da’Leino Palmer and Moss were friends, but after the debt dispute, he stopped visiting Moss. Instead, Da’Leino Palmer made frequent collection calls to Moss. Moss ignored them.

On April 29, 2009, Da’Leino and Keonne Palmer discussed Moss’ debt while driving Keonne to his job in St. Cloud. A passenger in the car testified that the Palmers mentioned that Moss was supposed to pay by noon that day.

Da’Leino Palmer owned a .22-caliber revolver. He often had a friend carry it because he was a convicted felon and not allowed to carry a firearm. Keonne Palmer had taken the cartridges out of the gun the previous week. Now Da’Leino Palmer wanted them back.

Keonne Palmer wiped his fingerprints off the cartridges before returning them to the gun. He put the gun under the front passenger seat.

Keonne and Da’Leino Palmer drove to Moss’ house in St. Cloud. They were waiting when Moss arrived with his children. An argument soon erupted.

Da’Leino Palmer learned that one of Moss’ neighbors owed Moss money. Da’Leino Palmer took his gun out of the car and went to the neighbor’s house. Moss also went to the house, but the neighbor wasn’t home.

The argument with Moss resumed outside of the neighbor’s house. Witnesses described it as “heated” and “loud.”

Keonne Palmer told Moss that Moss would have to pay Da’Leino Palmer, Da’Leino testified. Keonne Palmer testified that he was just trying to keep the peace. Keonne Palmer was standing between Da’Leino Palmer and Moss.

Moss threatened to call police and dialed 911. Da’Leino Palmer pulled out his gun. He pointed the gun at Moss and had his finger on the trigger.

Keonne Palmer grabbed the barrel of the gun and took the gun out of Da’Leino Palmer’s hand. Keonne Palmer put the gun in his right hand. He told Moss, “No you aren’t.”

Keonne Palmer fired two or three shots into Moss, paused and fired two or three more shots. Entrance wounds and bullet trajectories show that some shots were fired as Moss was falling or on the ground. All five shots hit Moss’ upper body or head.

Da’Leino Palmer went inside Moss’ house and took $20 and an electronic scale. Police arrested the Palmers later that day.

Analysis 
Justice G. Barry Anderson wrote the majority decision, which focused on Keonne Palmer’s legal brief that argued insufficient evidence supported the conviction. Reversal is difficult based on insufficient evidence. The reviewing court “view[s] the evidence in the light most favorable to the verdict and assume[s] that the fact-finder disbelieved any testimony conflicting with that verdict.”

Premeditation is “to consider, plan or prepare for, or determine to commit, the act [of murder] prior to its commission.” Time is needed to form premeditation. Not much time is necessary, only “some appreciable time.”

Keonne Palmer’s wiping his fingerprints off the cartridges, loading the murder weapon, placing the gun conveniently under the passenger seat and waiting for Moss to return home showed planning, based on Minnesota precedent cited by the majority.

Evidence of motive strengthens a finding of premeditation. Keonne Palmer’s motive, according to the majority, was collection of the debt from Moss. The debt made Keonne Palmer noticeably angry shortly before the shooting.

Another type of premeditation evidence is the nature of the killing, shown by “the defendant’s actions before, during and after the killing.” It may include “the number of wounds inflicted, infliction of wounds to vital areas, infliction of gunshot wounds from close range [and] passage of time between infliction of wounds.”

Similarly, Keonne Palmer paused in shooting. Some shots hit while Moss was falling or on the ground. Keonne Palmer testified that he knew that a single shot from “a small-caliber gun would not do much damage.” All five shots hit Moss in the head or upper body close to his chest.

Keonne Palmer argued that the shooting was “in public, in the middle of a loud argument and after talking with the neighbor,” and Da’Leino Palmer, not Keonne Palmer, got the gun out of the car. The debt, Keonne Palmer argues, was due later. The shots were fired in a “scattershot” nature. The majority disagreed because premeditation does not require extensive planning, and the shots hit their mark.

Similarly, the majority could not consider the act “unconsidered” or a “rash impulse,” as Keonne Palmer argued. His wiping his fingerprints off the cartridges, loading the gun and pausing between shots supported the conviction.

Dissent 
Justice Helen M. Meyer dissented, joined by Justices Alan C. Page and Paul H. Anderson.
When the Legislature writes a statute that punishes differently perpetrators of different crimes, the court cannot ignore the distinction, Meyer wrote. The state bears the burden to prove that “some appreciable time passed” between the intent to kill and the act.

Keonne Palmer tried to be a positive force in his brother Da’Leino Palmer’s life, even though Keonne disagreed with how his brother lived. Da’Leino Palmer was unemployed and homeless. He regularly smoked marijuana with Moss and sold drugs to Moss, who would retail them.

While Da’Leino Palmer’s relationship with Moss “deteriorated in the weeks before the shooting,” Keonne Palmer’s relationship with Moss did not.

Keonne Palmer had removed the cartridges from Da’Leino Palmer’s gun the last time they were together. He didn’t want a loaded gun around his children. The bullets were Da’Leino Palmer’s.

Keonne Palmer removed his fingerprints from them, possibly because he “wanted to dissociate himself from his brother’s illegal activities,” Meyer wrote.

Keonne Palmer did not know that Da’Leino Palmer removed the gun from the car, and it was Keonne Palmer who took the gun out of Da’Leino Palmer’s hand and began shooting.

The dissent concluded that the prosecution had failed to prove beyond a reasonable doubt that Keonne Palmer committed first-degree premeditated murder. Instead, Meyer would have remanded to the District Court for conviction for second-degree intentional murder.