Insufficient Proof to Submit Accomplice Testimony Instruction to Jury

State v. Cox, Minn.S.Ct., 9/19/2012.  A jury convicted Mr. Cox of first degree felony murder, second degree intentional murder, and being a prohibited person in possession of a firearm – all for the shooting death of a cab driver, James Moody.  The trial court entered convictions on all three verdicts, and sentenced Mr. Cox to life imprisonment on the first degree felony murder conviction, and to a concurrent sixty month sentence on the gun count.  The trial court did not sentence Mr. Cox on the second degree intentional murder conviction.

This was a retrial following a reversal on a Crawford error.  Read about that here.  Here’s how I described the facts the first time around:

A jury convicted Mr. Cox of the shooting death of a cab driver.  Mr. Cox, a Mr. McIntyre, and S.T. had been hanging out earlier in the evening at a local bowling alley, after which the three of them went to S.T.’s apartment complex.  Police searched S.T.’s apartment where they found a gun; some of the cartridge casings found at the homicide scene were fired by this gun.  Midway through trial, S.T., who was under subpoena, told the prosecutors that she was afraid to testify for fear of harm to herself or her child.  In response, the state asked to introduce her grand jury testimony as substantive evidence.  Her grand jury testimony incriminates Mr. Cox.

This time around Mr. Cox complained that the trial court should have given an accomplice testimony instruction as to S.T., whose name we now know to be Shemica Thomas.  Ms. Thomas testified about Cox and McIntyre returning to her place after she heard gunshots outside and about seeing the guys with their guns.  Mr. Cox thought that she was an accomplice based on these assertions:

Thomas was with Cox and McIntyre immediately before and after the shooting, frequently called cabs to the 3911 building even though she did not live there, had used the Omaha cell phone to make calls that weekend because her own phone had been shut off, had little to no money, and lied to the police following the shooting.

Justice Paul Anderson, writing for the court, rejects this contention.  He writes that there was no evidence that Ms. Thomas knew that Cox and McIntyre planned even to rob Mr. Moody much less shoot him, no evidence that she was present during the shooting, no evidence that she participated in the shooting, and no evidence that she encouraged the shooting. 

Mr. Cox also complained about an “Allen” charge that the trial court gave to the jury when it announced that it had reached a verdict on two of the three charges and asked what would happen if they were unable to agree on the third charge.    The court rejects this argument, concluding that the trial court had not instructed the jury that it had to reach verdict but had only told them that it was requiring them to continue deliberations only at that point to see if a verdict can be reached.  Justice Anderson concludes that this charge was unlikely to cause the jury to believe that it was required to reach a verdict.

Finally, the court vacated the second degree intentional murder conviction because it is a lesser included offense of the first degree conviction.