Minnesota Supreme Court justices heard arguments for a second time Wednesday in Nicholas Firkus’ appeal of his murder conviction, focusing on aspects of circumstantial evidence presented at trial.

A jury found Firkus guilty last year of first-degree premeditated murder in the 2010 shooting of his 25-year-old wife, Heidi, in their St. Paul home. He told police that an intruder broke into their home and Heidi was shot during a struggle over Firkus’ shotgun. The prosecution argued there was no intruder.Firkus, then 27, told police that he and Heidi were upstairs when he heard someone at the front door trying to break in. In the days after, during the investigation, police said they carried out a test by jiggling the front door knob while other officers were upstairs. The officers upstairs in the home said they couldn’t hear the sound; they videotaped their testing, which was played during Firkus’ jury trial.

Supreme Court justices also discussed Heidi Firkus’ 911 call and the motive that the prosecution put forward.

Firkus, now 41, is serving a life sentence in prison. He has said he’s innocent and, because it was a first-degree murder conviction, there was an automatic appeal to the Minnesota Supreme Court.

In April, the court heard oral arguments from Firkus’ attorney and a prosecutor from the Ramsey County Attorney’s Office. In July, the court issued an order that said, “to fully inform our consideration of this case, supplemental briefing and reargument is needed.” They asked a series of questions and requested both sides submit briefs with their legal arguments.

As part of the appeal, the Ramsey County Attorney’s Office, Minnesota Attorney General’s Office and Minnesota County Attorneys Association are asking the court to change the state’s two-step review standard for circumstantial evidence.

“Every other jurisdiction in the United States (is) right,” Thomas Ragatz, assistant Minnesota attorney general, said to justices Wednesday. “There should not be a separate standard of review for sufficiency of the evidence when it’s circumstantial. The circumstantial evidence standard of review is confusing, it does not help prevent wrongful convictions and it intrudes on the jury’s proper role in weighing and evaluating all of the evidence.”

The Minnesota Board of Public Defense and the Minnesota Association of Criminal Defense Lawyers are urging the state’s justices to keep its long-standing review for circumstantial evidence.

“I don’t think it is that complicated,” Firkus’ attorney, Robert Richman, said to the Supreme Court on Wednesday, pointing to cases of circumstantial evidence they’d decided. “… If you look at the facts of those cases, I don’t think you can read those cases objectively and not conclude that there was a reasonable doubt. … For the state to stand here and say, ‘… Just get rid of that standard,’ I think is not adhering to the principle that a prosecutor should make sure that justice is done.”

Sound test

During Wednesday’s arguments, Richman said the sound test at the door of the Firkus home was inconclusive based on what a camcorder could pick up, and a sergeant testified at trial that they would have needed a decibel meter “to actually make a determination of whether someone could hear the sounds from the bedroom or not.”

When a conviction is based on circumstantial evidence and there’s an appeal, appellate courts are to use a two-step analysis, according to the Minnesota Court of Appeals standards of review.

“The first step is to identify the circumstances proved,” the standards of review says.

“The second step is to determine whether the circumstances proved are consistent with guilt and inconsistent with any rational hypothesis except that of guilt,” the standards continue.

Associate Justice Paul Thissen asked Richman about the door-jiggling test: “Is it a circumstance proved that you couldn’t hear this sound from the bedroom based on that test?”

Richman answered: “I think there’s direct evidence that the camcorder was not able to discern the sound from the bedroom. I think you have to draw an inference from that, whether it’s also true that a human ear could not hear that sound.”

Richman said the jury “may have drawn an inference” that Firkus couldn’t hear the sound from the bedroom, but he said, “there is an equally reasonable inference that the camcorder was not as sensitive as the human ear.”

Assistant Ramsey County Attorney Alexandra Meyer, during her turn before the state’s Supreme Court, said since police testified that they could not hear the door knob jiggling, jurors could weigh information, “decide credibility, think practically.”

Interpreting circumstantial evidence

An example of circumstantial evidence is a person seen running away from a shooting while holding a gun, while direct evidence could be an eyewitness testifying they saw the suspect shoot the victim.

Associate Justice Gordon Moore III pointed out that Minnesota district courts instruct juries that the law doesn’t prefer one form of evidence over the other — direct or circumstantial.

“You keep referring to our circumstantial evidence review test as requiring us to look at direct evidence without regard to inferences, and that, to me, is very confusing,” Moore said to Richman.

The Minnesota Supreme Court has previously ruled that “circumstances proved are based on directly-proven facts,” Richman responded. “… I think it is implicit in the circumstantial evidence test that in the first step, we are looking only at direct evidence because the whole point of that test is in the second step of the analysis, you look at what inferences can be drawn and do not defer to the jury’s choice of inferences.”

Associate Justice Theodora Gaïtas asked about the interview Firkus gave to an investigator on the day that Heidi died, which was played in court.

“Was what Nick was saying a circumstance proved in this case or do we, as the reviewing court, have to just assume, in isolating the circumstances proved, that the jury rejected what Nick was saying?” she asked.

“The fact that he made that statement is evidence; we have it on video,” Richman answered. “Clearly, the substance of his statement is not a circumstance proved. Namely, the jury rejected his claim that there was an intruder.”

Thissen asked: “If the jury rejected his claim that there’s an intruder, does that mean … it’s a circumstance to prove that Nick was lying that there was an intruder? … Or is the fact that he was lying, would that be an inference the jury would draw?”

Richman said the fact of an intruder “was not a circumstance proved,” but the opposite also wasn’t proved — that there was no intruder.

“Why?” Thissen asked.

“Because there is no direct evidence that there was no intruder,” Richman said.

The U.S. Supreme Court declared 70 years ago that, “If the jury is convinced beyond a reasonable doubt, we can require no more,” Meyer said, quoting from the decision. The Ramsey County jury “found that the state proved beyond a reasonable doubt that Nicholas Firkus committed the premeditated murder of his wife,” she said.

“It should not matter if the jury’s rejection of a fact was based on directly contradictory evidence or simply the jury’s weight and credibility determinations,” Meyer said.

She added that the justices can affirm Firkus’ conviction based on the existing two-part circumstantial evidence standard of review “because there are no reasonable inferences other than guilt based on the evidence,” but she said prosecutors are urging them “to take this opportunity to acknowledge the confusion caused by this (two-part) standard.”

911 call, motive discussed

Other evidence discussed Wednesday was Heidi Firkus’ 911 call, in which she reported, “someone’s trying to break into my house.” The Ramsey County Attorney’s Office, which prosecuted Nicholas Firkus, has argued that she didn’t say she saw an intruder and that no struggle with an intruder could be heard in the background.

Gaïtas asked if they assumed the 911 call is a “circumstance proved” — that Heidi Firkus called 911 and reported an intruder — “would we then immediately go to looking at inferences that could be made based on that fact? Or would we wait, collect the rest of the circumstances proved and then look at the inferences, considering all of the evidence as a whole?”

Meyer responded that Gaïtas’ second question gets to her answer: “You don’t look piecemeal at every individual fact and think, ‘What could they possibly mean?’” If it’s a factual determination — the 911 call happened — then “you move it to the second part of the test and then, once you have all of the facts, you then look for the inference,” Meyer said.

Richman argued Wednesday that “there was absolutely no evidence of any discord between Nick and his wife, of any affairs or gambling.”

Associate Justice Anne McKeig interjected: “He didn’t tell her about the financial situation, which is a big deal.”

During Firkus’ trial, prosecutors told jurors that Firkus shot Heidi because he had kept news of their foreclosure from her, including that they were going to be evicted the next day. Firkus’ attorneys have said that Heidi knew about their financial situation.

“I don’t think that it is a reasonable motive that to avoid a difficult conversation with your wife, you instead kill her,” Richman said.

But McKeig said: “About money, which happens far too often.”

“There was no improvement in his financial situation as a result of the death of his wife,” Richman said. “His situation was no better off. He still was evicted from his home. This shameful foreclosure now was public news. There was no motive whatsoever.”

The justices don’t have a set date by which they’ll issue their written decision in the case.