State of Minnesota vs. Thomas Michael Luby

Thomas Luby was charged with second-degree intentional murder in connection

with the stabbing death of his girlfriend K.A. See Minn. Stat. § 609.19, subd. 1(1)

(requiring an intentional killing). A grand jury subsequently indicted Luby for first-degree

premeditated murder. See Minn. Stat. § 609.185(a)(l) (requiring a premeditated and

intentional killing).

At trial, Luby admitted to stabbing K.A. to death with a knife while intoxicated.

According to Luby, he and K.A. both suffered from alcoholism. On August 6, 2015, they

had been drinking for 8 days straight. That evening, they drank nearly all of a 1.75-liter

bottle of vodka without eating. Luby claimed that he consumed the majority of the bottle—

approximately 40 ounces—but that K.A. was more intoxicated than he was because “she

couldn’t drink very much without losing control” due to gastric bypass surgery. Luby took

the vodka away from K.A., but she kept begging him for more alcohol.

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Luby claimed that he went in and out of consciousness during the remainder of the

evening, and that he had an incomplete memory of what happened. At some point, he

awoke to K.A. holding a butcher knife to his throat. Luby took the knife from K.A. and

cut her stomach. Later that night, Luby again awoke to K.A. holding the knife to his throat.

He disarmed her and eventually stabbed her with the knife, which caused her death.1

After some time, Luby called 911 and reported to police that he had killed K.A.

Police found empty vodka bottles throughout the apartment and smelled alcohol on Luby.

Officers did not test Luby’s blood-alcohol-content level, but determined that K.A.’s blood

had an alcohol-content level of .45.

Luby’s strategy at trial was to concede that he had caused K.A.’s death, but to argue

that his intoxication prevented him from forming the intent to kill her. In his opening

statement, defense counsel told the jury that “we really don’t have much dispute as to what

the evidence will show.” But he asked the jury to “consider the most serious of the

elements” of the charged offenses, and to specifically focus on the word “intent,” which he

said “is what really will be in dispute here.” Luby testified at trial that he “never had an

intent to kill” K.A.

Prior to closing arguments, the district court instructed the jury on premeditation,

stating that “some amount of time must pass between the formation of the intent and the



1 K.A.’s body was discovered with approximately 70 stab wounds and some bruising. Luby’s statements during police interviews and at trial differed as to whether he remembered stabbing K.A. once in the mouth or neck area, or just assumed that he had stabbed her after he found her dead on the floor. Luby claimed during a police interview that the bruising had occurred because K.A. fell and hit her head while intoxicated.

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carrying out of the act,” and that “an unconsidered or rash impulse, even though it includes

an intent to kill, is not premeditated.”

During closing arguments, the State focused on establishing both intent and

premeditation, arguing that Luby was not too intoxicated to form the intent to kill and that

the nature of the killing established premeditation. Defense counsel reminded the jury that

“the State must prove each and every element,” but again directed the jury to focus on “the

most important element in this case . . . the intent element.” As he described the elements

of first-degree murder, counsel made the statement at issue in this appeal:

First degree murder requires premeditation and the intent to kill. The instruction will be given to you in writing so you can go over it. We’re not really disputing the premeditation part. I would submit to you that intent element is the one that’s in question here. For the second degree, same as first degree, but without premeditation.



(Emphasis added.) Counsel did not mention premeditation again, but reiterated that “what

we are attempting to negate, is the intent required, and intoxication is only a defense to

intent.”2

The State requested rebuttal, during which it told the jury several times that defense

counsel had conceded the element of premeditation. The State started its rebuttal by

stating, “[Defense counsel] told you that premeditation is not an issue. They’re conceding

premeditation.” Defense counsel objected without stating the basis for his objection. The



2 A factfinder may consider intoxication “in determining whether [the defendant] acted with intent and premeditation.” State v. Wahlberg, 296 N.W.2d 408, 416 (Minn. 1980) (emphasis added). Voluntary intoxication is thus a defense to premeditation, contrary to defense counsel’s assertion that it is only a defense to intent. Not only did defense counsel missate the law, but he also waived Luby’s voluntary intoxication defense with respect to the premeditation element.

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district court responded by directing the jurors to “rely on their recollection of the

arguments and the facts in the case.” The State then continued to argue that premeditation

had been conceded, and neither defense counsel nor Luby made any further objections.

After approximately 9 hours of deliberating, the jury returned a verdict of guilty on

Luby’s second-degree intentional murder charge. After two additional hours, the jury

returned a verdict of guilty on the first-degree premeditated murder charge. Luby was

convicted of both charges, and sentenced to life imprisonment without the possibility of

release.

ANALYSIS

On appeal, Luby argues that he is entitled to a new trial because his defense counsel

provided ineffective assistance by conceding guilt without his consent. To succeed on an

ineffective assistance of counsel claim, a defendant must show that (1) “his attorney’s

performance fell below an objective standard of reasonableness,” and (2) “a reasonable

probability exists that the outcome would have been different, but for counsel’s errors.”

Gail v. State, 732 N.W.2d 243, 248 (Minn. 2007); see also Strickland v. Washington, 466

U.S. 668, 687–88, 692 (1984). When defense counsel concedes the defendant’s guilt

without consent, “counsel’s performance is deficient and prejudice is presumed.” State v.

Prtine, 784 N.W.2d 303, 317–18 (Minn. 2010). We have explained that “[t]he decision to

admit guilt is the defendant’s decision to make.” Dukes v. State, 621 N.W.2d 246, 254

(Minn. 2001), modified on other grounds by Ferguson v. State, 645 N.W.2d 437 (Minn.

2002). Thus, “[i]f that decision is taken from the defendant, the defendant is entitled to a

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new trial, regardless of whether he would have been convicted without the admission.”

Prtine, 784 N.W.2d at 318.

We apply a two-step analysis to ineffective-assistance claims involving an alleged

unauthorized concession of guilt. First, we review the record de novo to determine whether

defense counsel made a concession of guilt. Id. If so, the defendant is entitled to a new

trial unless he “acquiesced in that concession.” Id.

I.

We must first determine whether defense counsel made a concession of guilt. A

concession may be express or implied. See State v. Provost, 490 N.W.2d 93, 97 (Minn.

1992) (recognizing an express concession); State v. Wiplinger, 343 N.W.2d 858, 861

(Minn. 1984) (recognizing an implied concession).

Here, Luby argues that defense counsel expressly conceded his guilt when, during

his closing argument, he told the jury that he was “not really disputing the premeditation

part” of first-degree murder, but that the “intent element [was] the one” in question.3 Luby

argues that this statement expressly conceded premeditation, which necessarily conceded

intent. We agree.

Defense counsel’s statement expressly conceded the premeditation element. And,

as the district court instructed the jury here, “[p]remeditation, by definition, requires some

amount of time to pass between formation of the intent and the carrying out of the act.”



3 Defense counsel had already conceded causation and Luby’s identity as the killer, so premeditation and intent were the only elements of the crime left in dispute for closing arguments.

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State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992) (emphasis added); see also State v.

Goodloe, 718 N.W.2d 413, 419 (Minn. 2006) (explaining that premeditation requires the

State to “prove that before the commission of the act but after the defendant formed the

intent to kill some appreciable time passed during which the defendant considered, planned,

or prepared to commit the act” (emphasis added)). Thus, because the formation of an intent

to kill is a prerequisite to premeditation, conceding premeditation also necessarily

conceded intent.4 See State v. Anderson, 789 N.W.2d 227, 240–41 (Minn. 2010) (holding

that a jury instruction “sufficiently indicate[d] to the jury that [the defendant] must have

formed an intent to kill . . . and then premeditated.”).

The State claims that a reasonable person would not consider defense counsel’s one

statement during closing arguments to be a concession on premeditation or intent when



4 The dissent argues that defense counsel’s concession on premeditation did not concede intent because counsel’s closing statement distinguished between the two elements, and intent was consistently disputed throughout trial. We recognize that intent is a separate element from premeditation; however, the element of premeditation presupposes the existence of intent, as discussed above. It is possible to have an intent to kill without premeditating the killing, but not vice versa. The dissent attempts to find refuge in repeated arguments by defense counsel about the absence of intent. But this is exactly why the concession was so damaging to the defense strategy. The jury was repeatedly reminded that there was no dispute on the element of premeditation, and consequently, of intent as well. Indeed, the court instructed the jury regarding the inseparable connection between premeditation and intent, explicitly contradicting defense counsel’s strategy of distinguishing the two elements. Defense counsel’s express concession of premeditation also impliedly conceded intent.



Moreover, Wahlberg highlights the link between intent, premeditation, and the defense of intoxication. See 296 N.W.2d at 416. Indeed, no law supports the proposition that a defendant could be too intoxicated to form an intent to kill, but lucid enough to premeditate a murder. By claiming that Luby’s intoxication was only relevant to his intent, yet conceding premeditation, defense counsel also effectively conceded Luby’s sole defense.

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counsel consistently argued that Luby was too intoxicated to form the required mental state.

But this argument is controverted by the exchange among defense counsel, the State, and

the district court that followed defense counsel’s closing argument. In its rebuttal closing,

the State amplified the concession by immediately telling the jury that the defense had

conceded premeditation. When defense counsel made an unspecified objection to this

statement, the district court did not seek clarification, but simply instructed the jury to “rely

on their recollection of the arguments and the facts in the case.” And when the State

repeated its claim that the defense had conceded premeditation, defense counsel did not

object further or request surrebuttal to address the issue. See Torres v. State, 688 N.W.2d

569, 574 (Minn. 2004) (holding that defense counsel’s closing statement was not a

concession when counsel requested surrebuttal to clarify that no concession occurred).

The State further contends that the jury’s lengthy deliberations show that it did not

consider any element conceded. But it is well established that we “will make no inquiry

into the nature or extent of [jury] deliberations.” In re Hurlbut’s Estate, 148 N.W. 51, 52

(Minn. 1914). Further, we need not conclude that defense counsel’s concession actually

prejudiced the jury’s decision; rather, if there was an unauthorized concession, prejudice is

presumed and Luby is entitled to a new trial “regardless of whether he would have been

convicted without the admission.” Prtine, 784 N.W.2d at 318. Accordingly, we hold that

Luby’s counsel conceded his guilt.



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II.

Because Luby’s counsel conceded guilt, Luby is entitled to a new trial unless he

consented to the concession. Id. When, as here, there is no evidence of express consent,

we “look at the entire record to determine if the defendant acquiesced in his counsel’s

strategy.” Id. Acquiescence may be implied in certain circumstances, such as (1) when

defense counsel uses the concession strategy throughout trial without objection from the

defendant, or (2) when the concession was an “understandable” strategy and the defendant

was present, understood a concession was being made, but failed to object. State v.

Jorgensen, 660 N.W.2d 127, 132–33 (Minn. 2003). “When the record is unclear as to

whether the defendant acquiesced in his counsel’s concession,” we have remanded the

issue for an evidentiary hearing. Prtine, 784 N.W.2d at 318.

Luby argues that the record clearly establishes that he did not acquiesce in defense

counsel’s concession because counsel did not concede Luby’s guilt until closing

arguments, and conceding guilt was not an understandable strategy in this case. The State

agrees that the record is devoid of evidence of Luby’s consent or acquiescence, but requests

that we remand this issue for an evidentiary hearing.

We agree with Luby that the record clearly establishes that he did not acquiesce in

defense counsel’s concession. First, defense counsel did not concede the element of

premeditation until closing arguments, as Luby observes, after defense counsel had been

consistently silent on this element, making it difficult to conclude that Luby somehow

acquiesced in a strategy that manifested itself only at the end of trial. See Torres, 688

N.W.2d at 573 (stating that “silence on a particular element of a crime is not the same as a

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concession”). Second, because intent is a prerequisite to premeditation, Moore, 481

N.W.2d at 360, counsel’s concession was inconsistent with the trial strategy of arguing that

Luby was unable to form the requisite intent to kill due to voluntary intoxication. Indeed,

counsel’s concession was not an understandable trial strategy because it admitted Luby’s

guilt to the only disputed elements of both of the charged offenses, the greater of which

carried a mandatory life sentence. Accordingly, we conclude that Luby did not acquiesce

in his counsel’s concession.

Luby’s defense counsel provided ineffective assistance when he conceded Luby’s

guilt to first-degree premeditated and second-degree intentional murder without his

consent. We therefore reverse Luby’s convictions and remand for a new trial.

For the foregoing reasons, we reverse the appellant’s convictions and remand to the district court for a new trial on both charges.5