No Error in Jury Instruction on Accomplice Liability

State v. Smith, Minn.Ct.App., 8/21/2017.A jury convicted Ms. Smith of various counts of aiding and abetting crimes:  second degree assault, third degree assault, and simple robbery.  She complained on appeal that the trial court had given an erroneous instruction on accomplice liability and should get a new trial.

Ms. Smith and a Mr. McKee came to the home of N.N. and A.M. Upon entry, Mr. McKee pulled a bandana over his face and struck N.N. three times in the head.  A.M. said that Ms. Smith was blocking her way so that she could not get past her during the assault.  Ms. Smith and Mr. McKee then went into a bedroom where they found J.F.; A.M. gave Mr. McKee her money, prescription pills and her cell phone;  Mr. McKee and Ms. Smith then left.

Ms. Smith's instructions error focused on the requirement that the state prove that she had "intentionally aided" Mr. McKee.  The trial court instructed the jury that the state had to prove that Ms. Smith "knew her alleged accomplices were going to or were committing a crime."  Ms. Smith argued that the instruction should have been that she knew that Mr. McKee "was going to commit" a crime.  She relies upon a series of opinions that contained this "was going to commit" language:  State v. Huber, 877 N.W.2d 519 (Minn. 2016); State v. Kelley, 855 N.W.2d 269 (Minn. 2014); State v. Bahtuoh, 840 N.W.2d 804 (Minn. 2013); State v. Mahkuk, 736 N.W.2d 675 (Minn. 2007).  

Under a "plain error" analysis the court of appeals can ignore what these opinions had said.  The court emphasized that the trial court still has considerable discretion in drafting jury instructions and that these instructions adequately got the point across to the jury correctly.  In sum, the court said:

A defendant who acquires the requisite knowledge while the accomplice is in the process of committing the offense, and makes the choice to aid in its commission either through her presence or her actions, is guilty as an accomplice under the plain language of Minn. Stat. § 609.05. 

Court Rejects Challenges To Grand Jury Procedures, Evidentiary Rulings & Jury Instructions in Affirming Murder I Conviction

State v. Guzman, Minn.S.Ct., 4/12/2017.  A jury convicted Mr. Guzman of first degree premeditated murder.  The trial court sentenced him to life with possibility of release.  

The state's initial Complaint charged Mr. Guzman with second degree intentional murder.  At his first appearance the trial judge asked the prosecutor to notify the court and defense counsel if there was going to be a presentation to the grand jury.  The prosecutor apparently didn't say anything in response, but seventeen days later the state convened a grand jury which eventually returned the murder 1 indictment.  Mr. Guzman said that the indictment was untimely, citing to Rule 8.02, subd. 2:

If the complaint charges a homicide, and the prosecuting attorney notifies the court that the case will be presented to the grand jury, or if the offense is punishable by life imprisonment, the defendant cannot enter a plea at the Rule 8 hearing.

Presentation of the case to the grand jury must commence within 14 days from the date of defendant’s appearance in the court under this rule, and an indictment or report of no indictment must be returned within a reasonable time.

Justice G. Barry Anderson pointed to the court's opinion last year, State v. Vang, which rejected this very argument.

Mr. Guzman also wanted the entire grand jury transcript, not just the testimony of trial witnesses.  The court talked about this just the other week, State v. Loving, and laid out what the defense has to show in order to get the non-testimonial portion of grand jury proceedings.  The defense must show good cause to acquire the non-testimonial portion; the trial court found, and Justice Anderson agreed, that this burden had not been met.

Mr. Guzman defended in part by saying that a Mr. Hector was a third party perpetrator.  Mr. Guzman wanted to introduce "prior bad acts" of Mr. Hector, some of which the court allowed but most of which it excluded on evidentiary grounds:

Here, the district court allowed appellant to present evidence that at the time of Rufino’s death, Hector had consumed alcohol and possessed a firearm.11 The court, however, excluded the following reverse-Spreigl evidence as irrelevant: testimony that during the spring 2014 robbery Hector consumed alcohol and possessed a firearm and testimony about an alleged dispute between Hector and his neighbor that involved a gun. The court also excluded evidence that Hector and Rufino were gang members, concluding that the evidence was “innately prejudicial.” Finally, the district court excluded testimony regarding an alleged confrontation between Hector and J.R., finding that if it was offered for the truth of the matter asserted, it was hearsay, and if it was offered for impeachment, Hector did not have an opportunity to admit or deny it. 

The trial court allowed the state to introduce recordings of jail calls between Mr. Guzman and his girlfriend, some of which occurred while he was in jail on something else.  While the court didn't like it that the state told the jury how it was that it had these recordings it said that any error was harmless.

Once again, the whole business of "expansive liability" language in the jury instruction on accomplice liability came up:

The law further provides that a defendant who intentionally aids and abets another person in the commission of a crime is not only guilty of the intended crime but also any other crime which was a reasonably foreseeable and probable consequence of trying to commit the intended crime.

Appellant objected to the italicized language, which for purposes of this opinion we will call “the expansive-liability language.” According to appellant, the expansive-liability language is appropriate only when there is evidence that the defendant intentionally aided and abetted an accomplice in the commission of a crime, like robbery, and the accomplice commits another crime that was reasonably foreseeable to the defendant, like murder. 

The court says that if there were any error it was harmless.

"Plain Error" Instructions on Accomplice Liability Earn Defendant a New Trial

State v. Huber,  Minn.S.Ct., 4/6/2016.  A jury convicted Timothy Huber of intentionally aiding his Dad, Delbert, in the commission of second degree intentional murder, and second degree felony murder of Mr. Larson.  On appeal Timothy said that the trial court had botched the accomplice liability instructions.  Justice Dietzen agreed and sent the case back for a new trial.

These two families had been feuding for some years.  On the morning of the homicide Timothy and Delbert drove to N.L.'s farm where Mr. Larson lived; Delbert brought along a rifle.  Timothy went to a barn to commence doing some chores; Delbert remained seated in the car with the door open.  Mr. Larson arrived at the farm; he and Delbert had what Justice Dietzen described as an "altercation" at the end of which Delbert shot Mr. Larson.  Sometime later, Delbert got around to calling the authorities to report that he'd shot Mr. Larson.

Delbert testified that he did not tell Timothy that he planned to shoot Larson, that he did not ask him whether he should bring a gun to the farm, and that Timothy never touched the gun.

The trial court told the jury that Timothy was guilty of a crime committed by Delbert if he "intentionally aided [Delbert] in committing it."  The instructions did not, however, go on to explain what "intentionally aided" means:  Timothy knew that Delbert was going to commit a crime and he intended his actions or presence to further the commission of that offense.  State v. Kelley, 855 N.W.2d 269 (Minn. 2014).  This was "plain error."

But, wait, there's more.  The instructions also misstated accomplice liability in setting out the elements of the offense that Timothy was accused of aiding.  Thirteen times the instructions failed to include the modifier, "intentionally," that is, the instructions failed to inform the jury that any aiding and abetting be intentional.  This was also "plain error."

For two reasons these plain errors affected Timothy's substantial rights.  First, Timothy contested the state's claim that he intentionally aided Delbert, and presented evidence that he did not do so.  Second, the state's evidence that Timothy intentionally aided Delbert in shooting Mr. Larson "was not overwhelming."  

Lastly, Timothy has satisfied the requirement that these plain errors which affected his substantial rights also adversely implicated the fairness, integrity and public reputation of the judicial proceedings. 

The error in this case was particularly serious because it prevented the jury from fully considering Huber's defense that he did not   intentionally aid Delbert in committing any crime. The instructions allowed the jury to convict Huber merely because he was present at the farm or took some actions that may have assisted Delbert in committing an offense. The evidence presented at trial to prove that Huber intentionally aided Delbert was not overwhelming and was disputed. Based on the specific facts of this case, we conclude that allowing Huber to receive a new trial will protect the fairness, integrity, and public reputation of the judicial proceedings.

Timothy gets a new trial.

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.