To Be “Plain Error” That Error Must Have Been “Plain” at the Time of Trial, Not During Appeal

State v. Kelley, Minn.Ct.App., 7/1/2013.  This seems to have been a drug deal that didn’t turn out too well.  Eventually, Mr. Kelley and his partner beat down the drug seller, took some of his stuff.  A jury convicted Mr. Kelley of first degree aggravated robbery and third degree assault. 

The legal fight was over the jury instructions.  The judge agreed, over the state’s objections, to instruct the jury on accomplice liability, at least for the robbery.  The judge gave the standard jury instruction, which told the jury that the state had to prove that Mr. Kelley intended his presence at the beat down to further the commission of the robbery, but did not tell the jury that the state had to prove that Mr. Kelley knew that his partner planned to commit a robbery.  Mr. Kelley did not object to this instruction so he’s in “plain error” land.

Now, at the time of the trial, everyone thought that this was a correct instruction.  Very shortly after Mr. Kelley filed his notice of appeal the supreme court came out with State v. Milton, 821 N.W.2d 789 (Minn. 2012.)  Milton required what the court had been suggesting: that the state had to prove both that a defendant knew that an accomplice was going to commit a crime and that a defendant intended his presence or actions to further the commission of that crime.  Milton thus made the trial court’s instruction an erroneous one, but was it “plain?

No, it was not.  The instruction neither violated settled law nor complied with settled law that was reversed during the pendency of the appeal.  The instruction is in the middle area where the error was unclear at the time of trial but became clear on appeal because the applicable law had been clarified.  The instruction was unclear at the time of trial because even though the Minnesota Supreme Court had strongly suggested that omitting the knowledge part was error – State v. Mahkuk, 736 N.W.2d 675 (Minn. 2007)  - the court had not required such an instruction until Milton.  The result is that the court will apply a “time-of-error” approach to “plainness,” rather than a “time-of-appeal” approach to “plainness” analysis. 

Just to be safe, the court also says that even if its approach to “plainness” is wrong the error did not affect Mr. Kelley’s substantial rights; and it did not affect the fairness and integrity of the judicial proceedings – the other two requirements of plan error analysis.