State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1255

State of Minnesota,
Respondent,

vs.

Thomas Michael Luby,
Appellant.

Filed July 27, 2020
Reversed and remanded
Frisch, Judge

Dakota County District Court
File No. 19HA-CR-15-2637

Keith Ellison, Attorney General, St. Paul, Minnesota; and

James C. Backstrom, Dakota County Attorney, Heather Pipenhagen, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Bjorkman, Judge; and Frisch,
Judge.
U N P U B L I S H E D O P I N I O N
FRISCH, Judge
Appellant seeks reversal of his convictions for second-degree intentional murder ,
alleging that the district court erred by (1) denying his motion to suppress custodial

2
statements to law enforcement obtained in violation of his right to counsel; and (2) denying
his request to instruct the jury on the lesser-included offense of first-degree heat-of-passion
manslaughter.1 We reverse and remand.
FACTS
This appeal follows the second trial in this matter. The underlying facts are
summarized as follows.
At approximately 4:05 a.m. on August 7, 2015, appellant Thomas Michael Luby
called 911 to report that he killed his girlfriend, K.A., after she attacked him with a knife.
Luby told the 911 dispatcher: “I took the knife from her, and I turned it on her.”
Luby and K.A. were drinking together in their home the previous evening . Luby
described K.A. as “drunk as could be,” and stated that she became angry with him because
he would not let her continue drinking. Luby claims that while he watched a baseball game
on their couch, K.A. attacked him with a butcher knife and cut him under his chin. Luby
took the knife from K.A. and placed it on an ottoman in front of the couch. K.A. then fell
asleep for a short period of time.
K.A. later woke up, demanded a drink, and picked up the knife. Luby took the knife
from K.A. and then the two continued the altercation . Luby recalls stabbing K.A. a few
times in her abdomen and mouth . Luby also recalls that, at some point there after, K.A.
was lying dead on the floor. According to the medical examiner who performed K.A.’s

1 Luby also seeks correction of the warrant of commitment and raises additional issues in
his pro se supplemental brief. Because we reverse Luby’s convictions and remand for a
new trial, we do not reach these additional issues.

3
autopsy, K.A. had approximately 70 sharp -force injuries caused by an edged implement ,
such as a knife, along with a number of blunt force injuries.
Luby was not sure of the precise timing of these events but estimated that the entire
altercation occurred between 9:00 p.m. and midnight. The medical examiner estimated
that K.A. died at some point between 10:00 p.m. and 2:00 a.m. When asked whether the
injuries could have occurred over a period of several hours , the medical examiner
responded, “It’s possible.” Luby continued to drink after realizing that K.A. was dead.
Luby was interviewed twice by police officers on August 7, 2015, and provided the
narrative of events set forth herein. A grand jury indicted Luby on charges of first - and
second-degree murder. Following a 2016 trial, a jury found Luby guilty of first - and
second-degree murder. The supreme court reversed those convictions due to ineffective
assistance of counsel, remanding the matter for retrial. State v. Luby, 904 N.W.2d 453, 459
(Minn. 2017).
Following remand, Luby moved to suppress his statements made during the two
interviews on August 7, 2015, arguing that the officers failed to stop the first interview and
clarify whether he invoked his right to counsel. The district court denied the motion, and
the matter proceeded to a second jury trial. At the close of the evidence, the district court
denied Luby’s request to instruct the jury on the lesser-included offense of first-degree
heat-of-passion manslaughter but amended the indictment to add a charge of second-degree
felony murder.
The jury found Luby not guilty of first -degree murder and guilty of second -degree
intentional murder and second-degree felony murder. The district court sentenced Luby to

4
346 months in prison only on the second -degree intentional murder charge, but entered
convictions for both counts of second-degree murder on the warrant of commitment. This
appeal followed.
D E C I S I O N
Motion to Suppress
Luby first argues that the district court erred by denying his motion to suppress his
custodial statements because the investigators failed to stop and clarify his ambiguous
invocations of his right to counsel. “When a district court decides whether a suspect
successfully invoked the right to counsel during a custodial interview, that determination
involves intertwined questions of law and fact.” State v. Chavarria-Cruz, 784 N.W.2d 355,
363 (Minn. 2010). We review a district court’s application of the stop -and-clarify rule
de novo and review the district court’s findings of fact for clear error. State v. Ortega, 798
N.W.2d 59, 70 (Minn. 2011).
Under both the Fifth Amendment to the United States Constitution and article I,
section 7 of the Minnesota Constitution, “the right to have counsel present during an
interrogation while [a] suspect is in police custody is an indispensable prophylactic
measure to protect the constitutional privilege against self -incrimination.” Chavarria-
Cruz, 784 N.W.2d at 360. While under the United States Constitution investigators are not
required to clarify a n ambiguous request fo r counsel, Ortega, 798 N.W.2d at 71, “[i]n
Minnesota, suspects are afforded one further level of protection. Where a suspect’s request
is equivocal or ambiguous but subject to a construction that the accused is requesting
counsel, all further questioning must stop except that narrow questions designed to clarify

5
the accused’s true desires respecting counsel may continue.” Chavarria-Cruz, 784 N.W.2d
at 361 (quotation omitted).
Following the administration of the Miranda warning, Luby informed the office rs
that he was mentally unwell. The interview commenced, and the following exchange
occurred at the outset:
Luby: Should I be saying this stuff without an attorney?
Officer: Well that’s totally up to you, right? I mean you still
have uh choices and opti ons in life and I’m grateful
actually . . .
Luby: I’ve nothin’ ta hide.
Officer: Okay. We’ll start yeah and you understand that it
would . . .
Luby: I mean her, her mom will support me one hundred
percent.
Officer: (cleared throat)
Luby: . . . (inaudible)
Officer: Tom just so you know for me to give you advice like
that would be uh unethical.
Luby: I know.
Officer: And just so . . .
Luby: I know.
Officer: . . . and you, you have choices in life. I, truly our
objective today in talking to you is ta help um really
bring closure to this and figure out what happened cuz
you know we can’t figure out, we can figure out some
stuff right. I mean we got smart people that do . . .
Luby: Well here’s the thing. I had a woman that I loved very
much . . .

The interview continued. A short time later, Luby again paused to ask the officers:
Luby: Should I get an attorney I mean I’m, I feel like I’m
just being way too . . .
Officer: Well . . .
Luby: . . . forthright here.
Officer: Tom, I tell ya what, you are being forthright we’re,
we’re, I’ll speak for myself I won’t speak for [the
other officer present] but I, we appreciate that and we

6
understand you’ve been through a traumatic
experience. I don’t wanna, I don’t wanna force you
to do anything that you don’t . . . .
Luby: It’s horrible.
Officer: I don’t wanna force ya to do anything you don’t
wanna do uh but I-I, these explanations are helpful uh
to the case investigation.
Luby: Oh, okay.
Officer: Okay.

The interview continued.
Under Chavarria-Cruz, the district court was required to determine whether a
reasonable officer in the circumstances would understand Luby’s statements as a request
for an attorney. See 784 N.W.2d at 363 (examining whether a reasonable officer would
have understood that defe ndant requested counsel) . In so doing, the district court was
required to evaluate the recording of the interview and consider factual elements regarding
the exchange, including “the suspect’s precise words, the volume at which the words were
spoken, the volume relative to the suspect’s other words, the positions of participants and
the recorder in the room, and the actions and impressions of the suspect and officer, among
others.” Id. Although here the district court concluded that “[t]he police were no t
unreasonable in assessing Luby’s mention of speaking to an attorney as ambiguous,” the
district court did not conduct an objective inquiry as required under the Minnesota
Constitution to determine if the officers stop ped and clarified whether Luby intend ed to
invoke his right to counsel.
The state argues that , notwithstanding this error, the ultimate decision to deny the
suppression motion was still correct . The state asserts that Luby’s statements did not
amount to an ambiguous invocation of his righ t to counsel and the officers appropriately

7
clarified whether he desired to invoke his right to counsel before continuing the interview.
We disagree.
First, each of Luby’s two questions, on their face, required the officers to pause the
interview and clar ify whether he was invoking his right to counsel. “To trigger the
requirement . . . the content of [the suspect’s] words must have been at least subject to a
construction that he was requesting counsel.” Chavarria-Cruz, 784 N.W.2d at 361
(quotation omitted). While both of Luby’s statements were phrased as questions, they were
both subject to the construction that he requested counsel. See Ortega, 798 N.W.2d at 71-
72 (stating that “an inquiry as to whether [the suspect] needed an attorney” constituted an
equivocal request for counsel that required officers to seek clarification).
Second, the officers did not clarify whether Luby was invoking his right to counsel,
nor did Luby voluntarily continue the interview. In both instances where Luby raised the
issue of whether he should have counsel present, the officer responded , not with
clarification, but instead with encouragement that Luby continue participation in the
interview. After Luby first asked, “Should I be saying this stuff without an attorney?” the
interviewing officer responded: “Well that’s totally up to you, right? I mean you still have
uh choices and options in life and I’m grateful actually . . . . We’ll start yeah and you
understand that it would . . . .” The officer did not pause his questioning or clarify Luby’s
ambiguous invocation of his right to counsel , but instead talked over Luby’s request, and
encouraged his continued participation.
The officer went on to again tell Luby that “you have choices in life. I, truly our
objective today in talking to you is ta help um really bring closure to this and figure out

8
what happened cuz you know we can’t figure out, we can figure out some stuff right.” This
response by the offic er was not clarification; it was prohibited encouragement. See State
v. Doughty, 472 N.W.2d 299, 303 (Minn. 1991) (stating that the officer’s continuation of
the interview by saying “I’m very interested in hearing your side of the story” did not
constitute a proper clarification of the appellant’s equivocal request for counsel).
The same is true for Luby’s second equivocal invocation of his right to counsel .
Again, the interviewing officer made no attempt to clarify the question and statement by
Luby: “Should I get an attorney I mean I’m, I feel like I’m just being way too . . . forthright
here.” Instead of stopping and clarifying Luby’s question and his stated concern, the
officer responded, “I don’t wanna force ya to do anything you don’t wanna do uh but I -I,
these explanations are helpful uh to the case investigation.”
The failure to stop and clarify is particularly egregious during this second exchange,
where Luby expressly raises reservations about continuation of the interview. The officers
also failed to re -inform Luby of his Miranda rights following each of his ambiguous
invocations of his right to counsel. See Ortega, 798 N.W.2d at 72 (“Our case law illustrates
that proper recitation of the suspect’s constitutional rights is key to proper clarification.”) .
Because the interviewing officers failed to halt the interview , clarify whether Luby was
invoking his right to counsel , or re-inform him of his Miranda rights following his two
equivocal invocations of the right to counsel, the district court erred by admitting Luby’s
statements to police.
“The erroneous admission of a defendant’s statements to police entitles the
defendant to a new trial unless the admission of the statements was harmless beyond a

9
reasonable doubt.” Chavarria-Cruz, 784 N.W.2d at 365. The state bears the burde n to
show that the guilty verdicts were surely unattributable to the erroneous admission of
Luby’s statements. Id. In order to determine whether the guilty verdicts were surely
unattributable to the erroneous admission of Luby’s statements, we consider “the manner
in which the evidence was presented, whether it was highly persuasive, whether it was used
in closing argument, and whether it was effectively countered by defendant.” State v.
Al-Naseer, 690 N.W.2d 744, 748 (Minn. 2005).
At trial, Luby test ified that he did not intentionally kill K.A., and raised t he
affirmative defenses of self-defense and intoxication. The state asserts that the jury would
have found Luby guilty regardless of his custodial statements given Luby’s other
statements during t he 911 call, the number of times he stabbed K.A., the length of time
between K.A.’s death and when he called 911, and the testimony of the interviewing officer
that Luby’s behavior on the morning of arrest did not comport with the normal indicia of
intoxication.
But t he state structured its prosecution of Luby around the admissions in his
custodial statements. Luby’s statements to the police essentially formed the entire basis of
the state’s argument to the jury that he intentionally assaulted and murdered K.A.2 During
its closing argument, the state played ten separate clips from Luby’s custodial statements
to show that Luby intentionally murdered K.A., that Luby was not so intoxicated that he

2 The state’s closing argument focused largely on the premeditation element of first-degree
murder, but because the state did not make separate arguments regarding the intent element
of second -degree intentional murder and second -degree felony murder, the s tate relied
almost exclusively on Luby’s statements to prove those offenses as well.

10
lacked the requisite intent , and that Luby contradicted himself and was therefore not
credible.
While other evidence may have provided a basis separate from Luby’s custodial
statements from which the jury could have concluded that Luby intentionally assaulted and
murdered K.A., the existence of other evidence does not negate the central role of Luby’s
inadmissible statements during trial and especially during closing argument . Because
Luby’s statements formed “the central focus of the prosecutor’s closing argument,” the
district court’s erroneo us admission of the statements was not harmless beyond a
reasonable doubt. See Chavarria-Cruz, 784 N.W.2d at 365. Luby is therefore entitled to
a new trial due to the erroneous admission of his statements to the police.
Lesser-Included Offense
Luby is also entitled to a new tr ial on the independent basis that the district court
erred by denying his request to instruct the jury on the lesser -included offense of first -
degree heat-of-passion manslaughter. We review the denial of a request to instruct the jury
on a lesser-included offense for an abuse of discretion. State v. Dahlin, 695 N.W.2d 588,
597 (Minn. 2005). However, “where the evidence warrants a lesser -included offense
instruction, the trial court must give it.” Id. “[W]hen evidence exists to support the giving
of the instruction, it is an abuse of discretion for a trial court judge to weigh the evidence
or discredit witnesses and thereby deny an instruction.” Id. at 598.
First-degree heat-of-passion manslaughter is a lesser -included offense of second -
degree intentional murder. State v. Johnson, 719 N.W.2d 619, 625 -26 (Minn. 2006). A
district court must give the requested lesser -included offense instruction when “1) the

11
lesser offense is included in the charged offense; 2) t he evidence provides a rational basis
for acquitting the defendant of the offense charged; and 3) the evidence provides a rational
basis for convicting the defendant of the lesser-included offense.” Dahlin, 695 N.W.2d at
597. When “evaluating whether a rational basis exists in the evidence for a jury to acquit
a defendant of a greater charge and convict of a lesser, [district] courts must . . . view the
evidence in the light most favorable to the party requesting the instruction.” Id.
A rational basis for a guilty verdict for first-degree heat-of-passion manslaughter
and acquittal for second-degree intentional murder exists where “(1) the killing [was] in
the heat of passion, and (2) the passion [was] provoked by words and acts of another such
as would provoke a person of ordinary self -control under the circumstances.” Johnson,
719 N.W.2d at 626 (quotation omitted); see also Minn. Stat. § 609.20(1) (2014). Luby
argued that he was provoked into killing K.A. in the heat of passion when she attacked him
with the knife.
The district court denied Luby’s request to instruct the jury on the lesser -included
offense of first-degree manslaughter, because
we have multiple stabbings that occurred over a significant
period of time. How much time, we don’t know but I certainly
have the impression that it was maybe up to an hour. The . . .
medical examiner talked about the fatal blows. Those had to
have occurred during the latter part of the stabbings. Given
that all the evidence indicates that it happened over a long
period of time, I don’t find that there was a heat of passion. I
don’t believe his willpower was so clouded or weakened during
that time period. The second element, establishing whether a
person of ordinary self-control under like circumstances would
have been provoked, it says requires an objective standard. I
believe under that standard, it does not apply, additionally.

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(Emphasis added.)
The district court erred by improperly weighing evidence and by failing to view the
evidence in the light most favorable to Luby. Dahlin, 695 N.W.2d at 597-98 (stating that
courts “must look at the evidence in the light most favorable to the party requesting the
instruction” and “may not weigh the evidence”) . Furthermore, the district court did not
accurately state the substance of the medical examiner’s testimony. In response to the
question: “these injuries, could they have occurred over a period of several hours?” the
medical examiner testifie d: “It’s possible.” When viewed in the light most favorable to
Luby, this testimony did not establish that killing occurred over “a long period of time” as
opined by the district court.
The district court also erred because the evidence at trial warranted the instruction.
“In determining whether the district court erred in denying the instruction we look for a
heat of passion that clouds a defendant’s reason and weakens his willpower. Anger alone
is not enough.” Johnson, 719 N.W.2d at 626 (quotation omitted). “The second element of
the heat-of-passion defense is objective, analyzing whether the passion was provoked by
such words or acts of another as would provoke a person of ordinary self-control under like
circumstances.” Id. at 627 (quotation omitted).
The supreme court has found it appropriate to include the lesser-included instruction
for heat-of-passion manslaughter in similar cases. I n State v. Shannon, a heat-of-passion
manslaughter instruction was required where the defendant admitted he may have choked
his girlfriend to death during a dispute over the volume of defendant’s radio, which turned
into a physical altercation between the defendant and victim. 514 N.W.2d 790, 793 (Minn.

13
1994). There, the defendant was under the influence of alcohol and crack cocaine and
claimed that his m emory was hazy and he could not clearly recall what occurred. Id.
Similarly, in Johnson, a heat-of-passion manslaughter instruction was warranted where the
evidence supported the conclusion that the defendant and his girlfriend “engaged in an
increasingly heated argument . . . that escalated to a physical altercation in which [the
victim] shot [the defendant] —provoking [the defendant] to shoot her back just seconds
later.” 719 N.W.2d at 628.
When viewed in the light most favorable to Luby, the evidence that K.A. attacked
Luby with a knife and his claim that “[s]he came after me with a knife and we started
fighting and I ended up stabbing her,” like the altercations in Shannon and Johnson, support
an instruction for first-degree heat-of-passion manslaughter. The district court therefore
abused its discretion by declining Luby’s request to instruct the jury on the lesser-included
offense.
Despite this error, Luby is only entitled to a new trial if he was prejudiced. Dahlin,
695 N.W.2d at 598. “[W]hen determining if a defendant has been prejudiced by the court’s
failure to give a requested lesser -included offense instruction, appellate courts should
consider the instructions actually given and the verdict rendered by the jury.” Id. at 599.
Here, the jury acquitted Luby of first -degree murder and convicted him of second -degree
intentional murder and second-degree felony murder. Because first-degree heat-of-passion
manslaughter would have provided the jury with an alternative to a second-degree murder

14
conviction, Luby was prejudiced by the erroneous denial of the requested instruction. See
Johnson, 719 N.W.2d at 626. Therefore, Luby is entitled to a new trial.
Reversed and remanded.