State v. Bahtuoh, Minn.S.Ct., 12/26/2013. A jury convicted Mr. Bahtuoh of multiple offenses and the district court sentenced him to life with possibility of release for first degree felony murder while committing a drive-by shooting for the benefit of a gang. Mr. Bahtuoh drove a Mr. McGee over to a Mr. Parker’s residence. Mr. Bahtuoh called out for Mr. Parker and as Mr. Parker approached the car Mr. McGee shot him multiple times. The state’s theory of liability was that Mr. Bahtuoh was both a principal and an accomplice. The state’s proof, however, only established Mr. Bahtuoh’s accomplice liability.
Justice Stras affirms the conviction and sentence, rejecting a number of legal challenges along the way. The court concluded that there was sufficient circumstantial evidence to support the conviction, under the two-step rubric the court adopted a few years back in State v. Anderson, 789 N.W.2d 227 (Minn. 2010).
This gets to the heart of the case, which was the instruction on accomplice liability. Justice Stras first poses the question incorrectly by asking whether the district court misstated that law. Well, the district court did; no one really took issue with that. The real question was how to put a square peg into a round hole. With some gymnastics worthy of Cirque du Solei the justice finds a way to do just that.
Some five years ago the court announced what the state had to prove: that a defendant knew that his alleged accomplices were going to commit a crime, and that a defendant intended his presence or actions to further the commission of that crime. State v.Mahkuk, 736 N.W.2d 675 (Minn. 2007). No one, apparently read that opinion because just last year the court had to repeat the requirements in State v. Milton, 821 N.W.2d 789 (Minn. 2012).
Even so, the district court told Mr. Bahtuoh’s jury that he had to have intentionally aided, advised, etc., the other person – Mr. McGee – to commit the murder. Further, the district court told the jury that Mr. Bahtuoh had to have voluntarily associated himself with the “criminal venture”, do something to help this criminal venture succeed. And, the court told the jury that Mr. Bahtuoh’s presence at the crime scene was enough “if it is done intentionally and if it also aids or encourages the commission of the crime to any degree.” Under this instruction, Mr. Bahtuoh’s intentional presence with Mr. McGee is enough for accomplice liability even if that presence only unwittingly aided or encouraged the commission of the crime.
Justice Stras was able to get out of this conundrum by saying that two wrongs make it right. This is because the trial court also told the jury – incorrectly - that whether acting alone or intentionally aiding and abetting another Mr. Bahtuoh had to have acted with intent to kill Mr. Parker. By trying to combine an instruction on both principal and accomplice liability the trial court totally botched both, but that’s apparently okay. Somewhere in there – when the court looks at the instructions “as a whole” - can be discerned the necessary word fragments which, when rearranged years after the trial, recite the correct law. Law by cryptogram.
Mr. Bahtuoh also complained that his trial attorney provided ineffective assistance of counsel by telling the jury repeatedly during opening statement that Mr. Bahtuoh would testify, but then he didn’t testify. It turns out that so long as defense counsel can show that during his opening statement he reasonably expected his client to testify it’s not ineffective then not to put him up on the stand. And – there’s more – when your client has already sung to both the police and the grand jury, well, where’s there not a reasonable expectation of yet another performance to the petit jury?
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