State v. Pollard

862 N.W.2d 414 (2015)

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Nature of the Case

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Facts

McDaniel managed Cinema X, an adult movie theater. He lived in the theater, sleeping on a cot under the projector. The theater was a low-budget operation. For five dollars, patrons could watch a pornographic movie on the projection screen. Cinema X also sold adult magazines, DVDs, and other novelties. McDaniel was seventy-years-old. On March 13, a passerby found McDaniel's body by the theater's counter, three feet from the front door. McDaniel was wearing a shirt, a jacket, and two pairs of pants. McDaniel often dressed in layers because he kept the theater cool to cut down on heating bills. His belt was undone and both pairs of pants were unzipped. McDaniel's glasses were broken. Investigators found McDaniel's blood on the counter, two shelving units, the carpet, and the wood paneling. His blood was also on the steps behind the counter leading to the projectors and the area where he slept. McDaniel's hyoid bone and thyroid cartilage were broken. Later, the medical examiner determined his cause of death was blunt-force injuries to the head and neck, and asphyxiation caused by strangulation. Reviewing footage from downtown traffic cameras and surveillance cameras officers saw a suspect enter the cinema at 5:52 p.m. and leave at 6:12 p.m. The person was carrying a crow bar. When the suspect left, he had a black bag slung over his shoulder that he did not have when he entered the cinema. D was quickly identified as a suspect in the murder. The stolen goods and crow bar were found and all were linked back to D and McDaniel. D admitted to killing McDaniel on March 11. D claimed self-defense. In a letter to his girlfriend's mother, D said he 'panicked' when McDaniel sat 'real close' to him in the theater. He also denied killing McDaniel during the course of a robbery; instead, Pollard said he only took thirty dollars and some DVDs from the cinema after the struggle with McDaniel to make it look like a robbery. D was charged with murder in the first degree and one count of robbery in the first degree. D asserted the defenses of justification and diminished capacity. At trial, D offered what has been referred to as a 'gay panic defense'-though not calling it by that name. D claimed he was justified in attacking McDaniel because McDaniel allegedly made a sexual advance toward him in the theater. D asserted McDaniel sat next to him during the movie. D allegedly told McDaniel the interaction was inappropriate, then Pollard said he felt something on his leg at which point he 'fucking panicked.' D then ran to the front door but it was locked. When he turned around, McDaniel was behind him. D then grabbed the crow bar from his pocket and hit McDaniel on the head. D remembered strangling McDaniel, then hitting him with the crow bar again. D admitted taking money from the cash box and DVDs but claimed he did so only to make it look like a robbery. D pointed to the victim's unzipped pants, an abrasion on McDaniel's penis, and a white stain on a pair of pants. No evidence was presented that McDaniel was gay or sexually violent. D was found guilty and appealed.