This opinion will be unpublished and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
A15-1417
State of Minnesota,
Respondent,
vs.
Devon Derrick Parker,
Appellant.
Filed October 5, 2016
Affirmed in part, reversed in part, and remanded
Klaphake, Judge *
Hennepin County District Court
File No. 27-CR-14-2958
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Larkin, Presiding Judge; Smith, Tracy M., Judge; and
Klaphake, Judge.
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
KLAPHAKE, Judge
On appeal from his conviction of second-degree intentional murder, appellant
Devon Derrick Parker argues that the district court (1) erred in denying his request for a
change of venue, and (2) abused its discretion by imposing an upward durational
sentencing departure based on the fact that the crime occurred in the victim’s zone of
privacy. Because the district court acted within its discretion in denying Parker’s change-
of-venue request, we affirm his conviction; because the district court abused its discretion
by imposing an upward durational departure at sentencing, we reverse and remand for
resentencing.
DECISION
I. Change of Venue
Parker argues that the district court erred in denying his request for a change of
venue. We review a district court’s denial of a change-of-venue request for an abuse of
discretion. State v. Blom, 682 N.W.2d 578, 596 (Minn. 2004).
Minn. R. Crim. P. 25.02, subd. 3, provides that “[a] motion for continuance or change
of venue must be granted whenever potentially prejudicial material creates a reasonable
likelihood that a fair trial cannot be had. Actual prejudice need not be shown.” A case may
generate widespread pretrial publicity yet not require a change of venue. State v. Fratzke,
354 N.W.2d 402, 406-07 (Minn. 1984). Instead, Minnesota courts consider the publicity’s
specific nature, timing, and impact on jurors. Id. “Pretrial publicity consisting of factual
accounts of the crime is insufficient to establish that the publicity was prejudicial.” State v.
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Warren, 592 N.W.2d 440, 448 (Minn. 1999). “Moreover, the length of time between the
publicity and the trial may mitigate any potential prejudice.” Id. In Warren, the Minnesota
Supreme Court affirmed the district court’s denial of a change-of-venue request where the
defendant “identified approximately 18 pretrial newspaper articles as well as other news
reports” about the crime. Id. at 447. The supreme court also noted that all but one of the
newspaper articles were published approximately nine months before the trial. Id. at 448.
Here, the district court denied Parker’s request and concluded that there was “not a
reasonable likelihood that the publicity of this case would prevent Parker from receiving a
fair trial.” In arriving at its conclusion, the district court considered the nature and timing
of 14 news articles, a script from a television broadcast, and a Hennepin county attorney
press conference in which the county attorney referred to the victim as a “Good Samaritan.”
The district court found as a fact that all of the pre-trial publicity occurred more than a year
before the beginning of the trial.
Parker failed to show that any of the pre-trial publicity created a reasonable
likelihood of an unfair trial. First, the news stories that Parker submitted mostly recounted
the facts of the offense. And even assuming the news stories were inflammatory, the effects
of those were mitigated by the passage of time—approximately 14 months—between the
publicity and the beginning of Parker’s trial. See State v. Fairbanks, 842 N.W.2d 297, 303
(Minn. 2014) (concluding that 11 months between the publication of pretrial publicity and
the start of trial mitigated any prejudicial effects of 119 articles about the crime); State v.
Moore, 481 N.W.2d 355, 364 (Minn. 1992) (holding that district court acted within its
discretion in denying change-of-venue request where all but one of the news articles were
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published over a year before the trial). Second, during voir dire, none of the prospective
jurors indicated that they knew anything about the case or recognized Parker, suggesting
that the publicity that included Parker’s name and picture was not immediately impacting
their ability to be neutral in considering the facts as presented at trial. Parker argues,
however, that because the parties agreed not to use the term “Good Samaritan” during the
trial, he was unable to ask prospective jurors about their familiarity with the case. We
disagree. Defense counsel could have tested the prospective jurors’ familiarity by asking
questions concerning the facts of the case without uttering the phrase “Good Samaritan.”
Parker’s counsel made a strategic decision to not ask such questions. Consequently, the
record lacks any evidence that jurors were familiar with the case such that Parker would
not have received a fair trial.
Parker also argues that the publicity surrounding the Hennepin county attorney’s
press conference created a reasonable likelihood that Parker would not receive a fair trial,
warranting a change of venue. Because Parker did not raise this argument to the district
court, he must show that there was plain error affecting his substantial rights. See State v.
Griller, 583 N.W.2d 736, 740 (Minn. 1998) (reviewing unobjected-to errors for plain
error). Although we have some concerns about this press conference, there is no evidence
that it impacted the fairness of Parker’s trial. As stated above, Parker’s trial counsel never
asked any of the prospective jurors about their exposure to the facts of the case. Without
record evidence that Freeman’s press conference actually prejudiced Parker’s opportunity
for a fair trial, Parker’s argument concerning the press conference is without merit.
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Additionally, to the extent that Parker argues that the county attorney’s comments
at the press conference or in other pretrial statements constituted prosecutorial misconduct,
we also normally decline to hear such claims when they are raised for the first time on
appeal. State v. Ramey, 721 N.W.2d 294, 297 (Minn. 2006). But even if some of the
prosecutor’s comments spoke too much to Parker’s case in the media before trial because
of discussion of his character or the merits of the case, see, e.g., State ex rel. v. Tahash, 284
Minn. 365, 370, 170, N.W.2d 445, 448 (1968), Parker has failed to show that any such
prosecutorial misconduct affected his substantial rights under Griller. 583 N.W.2d 740;
see also In re Disciplinary Action against Michael, 836 N.W.2d 753, 765 (Minn. 2013)
(explaining that it is the supreme court’s “ultimate responsibility to determine what
discipline, if any, is appropriate” in attorney-misconduct cases).
The district court acted within its discretion in denying Parker’s change-of-venue
request because Parker has not shown that he was prejudiced, and Parker has not
demonstrated prejudice to support his claim of prosecutorial misconduct due to excessive
media coverage prior to trial.
II. Upward Durational Departure
Parker argues that the district court abused its discretion by imposing a sentence that
constituted an upward durational departure from the presumptive sentence. The district
court imposed a 480-month sentence, which included a 366-month period imposed as the
presumptive sentence and an additional 114 months as an upward durational departure.
This court generally reviews an upward departure from a presumptive sentence for an abuse
of discretion. State v. Jackson, 749 N.W.2d 353, 356-57 (Minn. 2008). The question of
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whether the district court’s reason for departure is proper is a legal issue that we review de
novo. Dillon v. State, 781 N.W.2d 588, 595 (Minn. App. 2010), review denied (Minn.
July 20, 2010). If the reason given by the district court justifies the departure, the departure
will be allowed. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). If the reason given
is improper or inadequate and there is insufficient evidence to justify the departure, the
departure will be reversed. Jackson, 749 N.W.2d at 357.
The sentencing guidelines contain a nonexclusive list of aggravating factors that
may justify an upward durational departure. Minn. Sent. Guidelines 2.D.2.b (2014). One
reason for imposing an upward departure is that the defendant committed the crime within
a victim’s zone of privacy. State v. Kindem, 338 N.W.2d 9, 17-18 (Minn. 1983). The zone
of privacy often includes a victim’s home, particularly when the offender enters the home
by force. State v. Thao, 649 N.W.2d 414, 421 (Minn. 2002); State v. Winchell, 363 N.W.2d
747, 750 (Minn. 1985). But the zone of privacy does have limits, and the supreme court
has declined to extend the zone of privacy to other places of “tranquility,” such as parks.
Thao, 649 N.W.2d at 421. 1
The district court identified the sole factor of invasion of the victim’s zone of
privacy in granting the upward durational departure here. But the record included
uncontradicted testimony that the armed victim, T.S., permitted Parker to enter his kitchen
after Parker knocked on the door for help, locked the door with a key after Parker entered,
1
Parker argues that the zone-of-privacy factor does not apply in homicide cases or in cases
when the defendant does not trespass in the victim’s home. In State v. Bock, 490 N.W.2d
116, 121 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992), we expressly rejected
this argument.
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ordered him to sit in a room that contained other loaded weapons, and refused to let him
leave the home despite Parker’s requests to do so. The district court did not consider how
these facts impacted application of the zone-of-privacy factor. “The core issue for the
district court in determining whether to depart durationally from the guidelines is whether
the defendant’s conduct was significantly more or less serious than that typically involved
in the commission of the crime.” Thao, 649 N.W.2d at 421. See Ture v. State, 353 N.W.2d
518, 525 (Minn. 1984) (stating that justification for an upward sentencing departure is
dependent upon “whether [the] defendant committed the crime in question . . . in a
particularly serious way”). The zone-of-privacy factor is less persuasive when the conduct
that precedes the crime includes that the defendant is held in the home against his will by
the victim. See Minn. Sent. Guidelines 2.D (requiring “substantial and compelling”
circumstances to justify a sentencing departure).
Further, the district court must balance aggravating factors against any mitigating
factors in determining whether to depart, and the failure to do so is error. State v. Curtiss,
353 N.W.2d 262, 264 (Minn. 1984). The sentencing guidelines contain a nonexclusive list
of mitigating factors that include aggression of the victim, duress of the offender, and
“substantial grounds” that otherwise excuse or mitigate the offender’s conduct, although
falling short of a defense. Minn. Sent. Guidelines 2.D.3 (2014); see State v. Larson, 473
N.W.2d 907, 910 (Minn. App. 1991) (“The sentencing guidelines acknowledge victim
aggression and duress as valid mitigating factors.”). A mitigating factor should not be
“ignored” in considering whether a “defendant’s conduct [is] particularly deserving of
punishment.” State v. Wall, 343 N.W.2d 22, 25-6 (Minn. 1984) (modifying upward
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durational departure to a presumptive sentence when the district court considered
aggravating factors but failed to consider the mitigating factor of a defendant’s mental
illness). Even one mitigating factor may support a downward durational departure. State
v. Solberg, 882 N.W.2d 618, 624-25 (Minn. 2016).
The district court summarily rejected Parker’s mitigation argument, including that
the offense occurred while Parker was under duress. The district court said that this
argument, and the argument that the victim was an aggressor, were “arguments that the
jury did not accept, so I don’t either.” (S.T. at 63) This summary rejection of the mitigation
argument was improper. First, the guilty verdict does not signify that the jury concluded
there were no mitigating facts surrounding the offense; it signifies only that Parker was
culpable for the crime and that he did not have a defense that excused his culpability.
Second, the trial record includes evidence of mitigation which the district court ignored.
The record establishes that T.S.’s home was very well protected: the home had bolt locks
on the doors that required a key for entry and egress, and the home contained what can
only be described as an arsenal of over 50 weapons placed about the home. According to
T.S.’s wife E.S., T.S. carried a gun on him “at all times” and did not leave the home very
often because he was afraid to do so, and it was “disconcerting” to her that there were guns
located throughout the house. On the late morning of the murder, T.S. was wearing his
revolver holstered on his hip. Parker knocked on T.S.’s kitchen door claiming he was in
danger, and entered the home with T.S.’s permission. A 911 operator was called to report
that Parker was in danger.
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According to the trial testimony of both Parker and E.S., who was located in the
dining room and could only hear what occurred in the kitchen, T.S. relocked the door
immediately after Parker entered the home. According to both Parker and E.S., T.S.
ordered Parker to sit and refused to let him out of the house even when he asked to leave.
E.S. testified that Parker asked to leave once and “may have” asked to leave a second time;
Parker testified that he twice asked to leave. E.S. testified that shortly after the 911 call
she heard a click which she knew was the cocking of a revolver, and fifteen seconds later
she heard a gunshot. Parker testified that T.S. had pointed his gun at him, and he thought
that T.S. was going to shoot him. This was the testimony regarding the circumstances that
preceded the struggle during which Parker overpowered T.S. and shot him with his own
gun.
Under the unique circumstances of this case, the failure of the district court to
consider all of the circumstances that affected application of the zone-of-privacy factor,
and the failure to consider any mitigating circumstances present in the record, amounted to
an abuse of discretion. Jackson, 749 N.W.2d at 357; Wall, 343 N.W.2d at 25-6. We
therefore reverse the aggravated portion of Parker’s sentence and remand for imposition of
the presumptive 366-month sentence. See id., 749 N.W.2d at 357 (requiring reversal and
remand for imposition of the presumptive sentence when the given departure reasons are
“improper or inadequate”).
Affirmed in part, reversed in part, and remanded.
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State of Minnesota v. Devon Derrick Parker
Combined Opinion