State of Minnesota v. Derrick Timothy Days

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A23-0768

State of Minnesota,
Respondent,

vs.

Derrick Timothy Days,
Appellant.

Filed April 29, 2024
Affirmed
Connolly, Judge

Olmsted County District Court
File No. 55-CR-21-3206

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

Mark A. Ostrem, Olmsted County Attorney, James E. Haase, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)

Catherine Middlebrook, Chief Appellate Public Defender, Gina D. Schulz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Bratvold, Judge; and Florey,

Judge.


Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
 NONPRECEDENTIAL OPINION

CONNOLLY, Judge

Appellant challenges his sentence for second-degree murder and assault, arguing

that the district court abused its discretion in denying appellant’s motion for a downward

durational departure because his offense was significantly less serious than a typical

intentional second-degree murder. We affirm.

FACTS

In June 2021, appellant Derrick Days and a friend, R.G., joined a dice game with a

group that included T.L.B. and T.R.W. A fight broke out between R.G. and T.L.B.

Appellant and T.R.W. gathered around them. T.R.W. appeared to join T.L.B. against R.G.;

appellant tried to separate them. R.G. tackled T.L.B. When both were on the pavement,

appellant shot T.R.W., causing him substantial bodily harm, then pulled R.G. off T.L.B.

and shot T.L.B., who was still on the ground, multiple times. T.L.B. died at the scene;

T.R.W. survived.

Appellant was charged with second-degree intentional murder, second-degree

felony murder, second-degree assault, and possession of a firearm by an ineligible person.

He agreed that he intended to kill T.L.B. when he shot him at least three times. Appellant

had a criminal-history score of 5 when sentenced for the second-degree murder; his

presumptive sentence was 346 to 480 months in prison. In January 2022, the state’s motion

to seek an aggravated sentence was granted.

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 In November 2022, appellant pleaded guilty to intentional second-degree murder

and assault; the state withdrew its motion for an aggravated sentence and agreed to a

sentencing cap of 426 months.

In March 2023, appellant moved for a downward durational departure to 240

months, arguing that his offense was less serious than a typical second-degree murder

because the victim was the aggressor and the offense was similar to first-degree heat-of-

passion manslaughter, a lesser crime. His motion for a downward durational departure was

denied, and he was sentenced to the maximum agreed sentence, 426 months. He argues

that the denial of his motion was an abuse of discretion.

DECISION

We grant a district court “great discretion in the imposition of sentences and reverse

sentencing decisions only for an abuse of that discretion.” State v. Soto, 855 N.W.2d 303,

307-08 (Minn. 2014) (quotation and citations omitted). “This court will not generally

review a district court’s exercise of its discretion to sentence a defendant when the sentence

imposed is within the presumptive guidelines range.” State v. Delk, 781 N.W.2d 426, 428

(Minn. App. 2010), rev. denied (Minn. July 20, 2010). A district court’s refusal to depart

from the sentencing guidelines will be reversed only in a “rare” case. State v. Kindem, 313

N.W.2d 6, 7 (Minn. 1981).

“Although the [district court] is required to give reasons for departure [from the

sentencing guidelines], an explanation is not required when the court considers reasons for

departure but elects to impose the presumptive sentence.” State v. Musse, 981 N.W.2d

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216, 220 (Minn. App. 2022), rev. denied (Minn. Dec. 28, 2022). The district court

nevertheless explained its rejection of appellant’s argument.

I do not doubt that this murder happened at a moment
of strong emotion. But at the crucial moment, [appellant]
already having shot and wounded [T.R.W.], when the
altercation between [T.L.B. and R.G.] was for all intents and
purposes over, at that moment, that’s when [appellant] fired at
close range at least three times into [T.L.B.]’s prone body
firing to kill.

. . . There was time to take another course and instead
[appellant] chose to pull the trigger not once but at least three
times.

I am not persuaded that there were mitigating
circumstances making this significantly less serious than a
typical intended killing, and I will not depart on that basis.

The district court in Musse rejected the defendant’s argument that “his offense was

significantly less serious than typical because it was ‘very similar’ to first-degree

manslaughter, also known as heat-of-passion manslaughter.” Id at 221. This court

affirmed the guidelines sentence and observed:

A heat-of-passion manslaughter occurs when one
“intentionally causes the death of another person in the heat of
passion provoked by such words or acts of another as would
provoke a person of ordinary self-control under like
circumstances.” Minn. Stat. § 609.20(1) (2020). A heat-of-
passion manslaughter requires (1) that the killing be committed
in the heat of passion and (2) that the passion be provoked by
such words or acts of another as would provoke a person of
ordinary self-control under the circumstances. The first
element is subjective and the second element is objective.

Although Musse acknowledges the objective
component of heat of passion manslaughter . . . , he does not
meaningfully argue that the objective standard was satisfied.
That is, he fails to address his prolonged and disproportionate

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 response to the initial physical confrontation. Instead, he
primarily relies on . . . his state of mind at the time of the crime,
which address[es] only the subjective component of heat-of-
passion manslaughter. For example, he argues that . . . he was
in a highly emotional state at the time of the offense. But under
the objective element, the adequacy of the provocation is
judged from the perspective of a person of ordinary self-control
under like circumstances. . . .

In sum, we fail to see how Musse’s act of shooting the
victim several times, walking away, and then returning to
execute the victim was reasonably and objectively provoked
under these facts. . . . Because Musse’s claimed departure
ground is based on his erroneous assertion that “the fact pattern
more closely fit a heat of passion killing,” it is not a valid
departure ground. See Minn. Sent’g Guidelines 2.D.3.a(5)
(2020) (requiring substantial, mitigating grounds).

Id. (quotations and citations omitted). Like the facts in Musse, the facts here show that

appellant was not provoked to attack. Appellant had seen T.L.B., the victim, fight with

R.G., appellant’s friend, and had pulled R.G. off T.LB., who was still on the ground when

appellant shot him at least three times at close range. There is no indication that any words

or acts of T.L.B. while he was fighting with R.G. would have provoked a person of ordinary

self-control to fire three shots into him.

Appellant argues that Musse is factually distinguishable because the defendant in

that case left the victim after shooting him, then returned to shoot him again, while

appellant had “an ongoing physical altercation” with T.L.B. But the physical altercation

in this case did not involve appellant: it occurred between his friend R.G., and the victim,

T.L.B., and appellant ended it by pulling R.G. off T.L.B. before he repeatedly shot T.L.B.

himself.

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 Appellant also claims that, unlike the defendant in Musse, he “does not argue that

his offense was a heat-of-passion killing” and therefore “does not need to prove that his

actions were “‘reasonably and objectively provoked.’” This argument fails for two

reasons. First, the defendant in Musse did not argue that his offense was actually a heat-

of-passion killing; he “argue[d] that his crime was significantly less serious than typical

because . . . his actions were consistent with a heat-of-passion killing.” Musse, 981 N.W.2d

at 220. Second, like the defendant in Musse, appellant argues that, while his offense was

second-degree intentional murder, he is entitled to a downward departure because the

offense “shared characteristics with heat-of-passion manslaughter, a less serious crime”

and “existed near the borderline” of second-degree intentional murder and heat-of-passion

manslaughter.” Appellant’s contention that Musse is distinguishable is unconvincing.

Like Musse, “this is not a ‘rare’ case warranting reversal of a presumptive sentence.”

981 N.W.2d at 223; see Kindem, 313 N.W.2d at 7.

Affirmed.

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