New trial sought for defendant convicted of fatally shoving man into traffic

The Little Canada man convicted earlier this month of manslaughter for fatally shoving another man into oncoming traffic should be retried, his attorney said.

In a motion filed Tuesday in Ramsey County District Court, attorney Bruce Rivers wrote that Michael J. Merten III should receive a new trial for the following reasons: interests of justice, the accident or surprise could not have been prevented by ordinary prudence, and because the conviction was not justified by the evidence, or was contrary to the law.

A jury convicted Merten on Nov. 12 of first-degree manslaughter and acquitted him of second-degree murder with intent and second-degree murder without intent while committing a felony.

Jurors were confused by the law, Rivers said Wednesday, and should have acquitted Merten of manslaughter if they found no evidence to convict on the felony murder counts. Elements required for a second-degree murder or manslaughter conviction are the same, he said.

"The very thing they used to acquit him of felony murder is what they used to convict him of manslaughter," Rivers said. "They would have to have found that my client acted with the intent to cause bodily harm" to convict him of either murder or manslaughter.

Evidence at trial showed that on the evening of Aug. 20, Merten, 41, became embroiled in an argument with Preston Hilgren, who called his father, Robert Hilgren, 47, for backup. The three men tussled on the frontage road of a mobile home park in Little Canada off of Rice Street just north of County Road B2. Merten lived in the park, and the Hilgrens had been visiting friends there that evening.

Preston Hilgren fled soon after his father arrived. Witnesses testified that Merten ran across Rice Street followed by Robert Hilgren. Merten and Robert Hilgren bumped chests in the middle of the road. At one point, Merten pushed Robert Hilgren, who was struck and killed by an SUV.

Assistant Ramsey County Attorney Rachel Kraker told jurors that Merten started the scuffle with Preston Hilgren and then finished the fight by running into the street and calling out for Robert Hilgren. Robert Hilgren's wife and a motorist both testified that Merten's push seemed timed with the arrival of an SUV.

The motion is expected to be heard in court sometime before Merten's sentencing on Dec. 23.

If a new trial is granted, Merten would only be retried on the manslaughter count and not the two murder counts.

At trial, it was Rivers who offered the manslaughter count as an option for jurors to consider. The move is available to defense attorneys in such cases, and is not unusual.