Principal’s Acquittal Does Not Preclude Conviction of Aiding & Abetting Same Offense.

State v. Caldwell, Minn.S.Ct., 8/31/2011.  A jury convicted Mr. Caldwell of aiding and abetting first degree premeditated murder for the benefit of a gang.  Mr. Caldwell drove the SUV from which a passenger fired at a group of “One-Nine” gang members; one of the shots killed Mr. Cole.  At a separate bench trial the trial court had found the shooter, Mr. Harrison, guilty of unintentional murder in the second degree, drive by murder, acquitting him of first degree premeditated murder.

Mr. Caldwell argued on appeal that the aiding and abetting statute, 609.05, subd. 4. precluded his conviction of aiding and abetting first degree premeditated murder because Mr. Harrison had been acquitted of that same offense.  Here’s what the statute says:

[a] person liable [for the crimes of another] may be charged with and convicted of the crime although the person who directly committed it has not been convicted, or has been convicted of some other degree of the crime or of some other crime based on the same act.

Mr. Caldwell argued that the exclusion of the term “acquittal” from the circumstances under which a defendant may be convicted for the crime of another took that circumstance out of the reach of the statute.  The expression of one thing, he said, in Latin - expressio unius est exclusio alterius – is the exclusion of the other.  This concept, the supreme court says, however, only applies to omissions that are intentional.  The supreme court thus concludes that the legislature surely meant all those “not … convicted” phrases to include an occasional acquittal.

Mr. Caldwell also argued that the state had not proved that the “LL’s” – Mr. Caldwell’s gang - met the definition of a gang.  Specifically, he said that the state hadn’t proven that this gang had as one of its primary activities the commission of the various crimes listed.  The supreme court pointed to testimony of several witnesses who said that this gang did engage in these activities and so rejected this argument.

Mr. Caldwell complained that his trial counsel was ineffective by asking “perfunctory” questions during voir dire.  Mr. Caldwell thought that counsel should have asked more probing questions to establish a cause challenge.  The supreme court reviewed the voir dire record and did not find counsel’s performance wanting.  Even had it done so, the problem was, Mr. Caldwell could not point to any potential juror who should have been removed for cause so he failed to show prejudice, even assuming inadequate performance.