Jury Instruction on Aiding and Abetting Must Explain that Defendant Must Know That Accomplice Was Going To Commit a Crime, and That Defendant Intended His Presence or Actions to Further The Commission of that Crime.

State v. Milton, Minn.S.Ct., 9/19/2012.  Back on January 2, 2010, Minneapolis police officers, responding to a 911 call, found Dontae Johnson lying face down in the snow beside a van, dead from multiple gunshot wounds.  Officers found a bunch of cash in Mr. Johnson’s pants and wallet, and they found four 9 mm spent shell casings.  C.W., apparently a friend of Johnson’s, told the police that Johnson had called his “cousin” to sell him some weed, and that when a car pulled up shortly thereafter C.W. assumed that the driver was the “cousin.”  C.W. also said that a a truck also arrived the same time as the “cousin.”  The driver of the truck got out; C.W. said that he was dressed in black, including a black hoodie, black jeans and a black mask.  This fellow also had a gun in his left hand.  The driver of the truck demanded Johnson’s weed and money all the while referring to the truck driver as either his “cousin” or “family;” when Johnson tried to run the driver shot him.

The police obtained Johnson’s cell phone records.  Mr. Johnson made and received calls right before the shooting to T.C, Mr. Milton’s brother.  A different set of officers went looking for Mr. Milton and found him at a duplex in north Minneapolis.  One officer, waiting in back in case anyone came running out the door, saw two shell casings on the platform of a stairway leading to both units,including up to Mr. Milton’s back door.  This officer grabbed those shells, even though she didn’t have a search warrant.  The crime lab determined that these shell casings had been fired from the same gun that had fired to casings found at the crime scene.  Mr. Johnson eventually admitted that he had been present at the shooting but that he had not been the shooter.

A jury convicted Mr. Milton as a principal and as an accomplice of  first degree felony murder and of attempted first degree felony murder.  The trial court sentenced him to concurrent prison terms of life and 220 months.  Mr. Milton argued on appeal, as he had at trial, that the police had unlawfully seized the shell casings off his stairway.  The trial court had concluded that the officer had found the casings “in plain view” at a location where she was authorized to be.  Justice Paul Anderson, writing for a unanimous court, concludes first that the officer was in the common area of the duplex – the stairway that provided access to both levels of the duplex, including the upstairs unit – and that this common area had a diminished expectation of privacy because those areas are not subject to the exclusive control of one tenant and are utilized by tenants generally.  State v. Krech, 403 N.W.2d 634 (Minn. 1987).  Justice Anderson next answers the question, what made it readily apparent that  these shell casings incriminating in nature?  Well, the long and the short of it is:  because they are shell casings “found discarded near a multifamily residence within city limits.”  So, pretty much any shell casings that a metropolitan cop comes across can be seized without a warrant unless the accused can persuade a judge otherwise.  Shell casings “may be useful” as evidence of crime, forget about being readily apparent contraband.  Justice Anderson did provide some solace by inclusion of this footnote:

We note that our conclusion in this case is driven by the fact that Milton resides in a multifamily residence. Additionally, we do not decide whether the upper part of the stairway leading from the platform to Milton’s upper-level residential unit—on which no shell casing was found, and which may not be visible from the shared platform—is curtilage.

The police had also found two other shell casings in Mr. Milton’s truck.  Even though the state had agreed not to introduce these shell casings – the officer who had found them was dead so there was a potential confrontation problem – instead the prosecutor, in an amazing sleight of hand, told the jury in opening statement that because the officer who had searched the truck was dead the jury would not hear what the officer had found, but that they would hear another officer’s repeated confrontation of Mr.  Milton about the casings that had been found in the truck!  Well, there wasn’t any real objection to this so it’s plain error if at all. Justice Anderson concludes that no error occurred, and to cover himself also concludes that if there were error it wasn’t plain.

Finally and most significantly, Mr.. Milton complained about the aiding and abetting instructions, to which defense counsel had made no objection, so, again, it’s plain error if any at all.  Here’s the instruction on first degree felony murder:

The elements of murder in the first degree are as follows: First, the death of Dontae Johnson must be proven.

Second, the defendant or a person whom the defendant intentionally aided caused the death of Dontae Johnson.

Third, the defendant, or a person whom the defendant aided, acted with the intent to kill Dontae Johnson. To find the defendant had an intent to kill, you must find that the defendant acted with the purpose of causing death or believed that the act would have that result. Intent, being a process of the mind, is not always susceptible to proof by direct evidence. It may be inferred from the all the circumstances surrounding the event. It is not necessary that the defendant—that the defendant’s act be premeditated.

Fourth, at the time of the act causing the death of Dontae Johnson, the defendant, or a person whom the defendant aided, was engaged in the act of committing or attempting to commit the crime of aggravated robbery . . . .

This instruction is wrong because it fails to properly explain the element of “intentionally aiding” to the jury.  The instruction does not explain to the jury that Mr. Milton had to have known that his alleged accomplices were going to commit a crime, and that he intended his presence to further the commission of that crime.  This is a new requirement and so the error is neither clear nor obvious.  However:

we take this opportunity to emphasize that an accomplice liability jury instruction must explain to the jury that in order to find a defendant guilty as an accomplice, the jury must find beyond a reasonable doubt that the defendant knew his alleged accomplice was going to commit a crime and the defendant intended his presence or actions to further the commission of that crime.

Here’s the instruction on the attempted murder in the first degree:

The elements of attempted murder in the first degree are, first, the defendant or another person with the defendant -- whom the defendant aided attempted to cause the death of [C.W.].

Second, the defendant acted with intent to kill [C.W.]. To find the defendant had an intent to kill, you must find that the defendant or a person whom the defendant aided acted with the purpose of causing death, or believed that the act would have that result.

Intent, being a process of the mind, is not always susceptible to proof beyond—to proof by direct evidence but may be inferred from all circumstances surrounding the event. It is not necessary that the act of the defendants or the act of the person whom he aided be premeditated.

Third, at the time of the attempt to cause the death [of] [C.W.], the defendant or a person whom he aided was engaged in the act of committing or attempting to commit the crime of aggravated robbery.

This instruction is also wrong, because it left out the “intentionally aiding” element of accomplice liability all together.  This is plain error, but id did not affect Mr. Milton’s substantial rights.